WHEELING – A group of businesses and individuals have filed a federal lawsuit seeking a declaration that Gov. Jim Justice’s “never-ending executive orders mandating restrictions” through the COVID-19 pandemic are unconstitutional.
The complaint was filed September 17 in U.S. District Court against Justice on behalf of Eden LLC doing business as Eden Family Restaurant, Fulton Fun Factory LLC, Hinebaugh Athletics LLC, The Rejuvenation Center II LLC, Hinebaugh Enterprises LLC doing business as Noah’s Ark Childcare And Learning Center as well as two Ohio County mothers – identified only by their initials – with children in the public school system.
“The harm is ongoing and will continue unless defendant is enjoined from encrouaching on the rights of the citizens within the Northern District of West Virginia,” the complaint states.
The plaintiffs cite another federal court ruling earlier this week in Pennsylvania in which the judge found that some of Gov. Thomas Wolf’s executive orders violated the constitutional rights of citizens.
This complaint follows at least two filed in state court about the school closures.
The new Northern District complaint details the COVID-19 pandemic and the state’s response, starting in March and continuing through September. It includes the color-coded county map that helps determine whether schools can open to in-person education.
The corporate plaintiffs say onerous restrictions still are in place for their businesses, such as day care centers, recreation and entertainment venues, gyms and exercise facilities as well as restaurants and taverns.
“In an arbitrary and capricious manner, defendant treats citizens located in different counties within the State of West Virginia differently than citizens located in other counties without any empirical data to sustain such a distinction,” the complaint states. “It is clear that the Coronavirus does not stop at or respect arbitrary boundaries such as county dividing lines.”
Eden Family Restaurant opened February 7 and operated until Justice’s executive order closed taverns and restaurants. When it reopened, it saw about a 90 percent reduction in daily sales. It also can’t host live entertainment like it did before the closure.
Fulton Fun Factory is a children’s entertainment venue with bouncy houses, party room and other games. The complaint says it has suffered irreparable harm from which “it may never recover” because of the executive orders.
Hinebaugh Athletics, a gym, has seen a “drastic reduction in customers and is still under severe restrictions as to how it can operate.” Likewise, Noah’s Ark has seen a “drastic reduction in enrollment.”
Rejuvenation Center has remained closed since March “as it cannot properly comply with the onerous restrictions required of it” for social distancing in exercise classes. It says it likely will never be able to reopen.
As for the school closings, the complaint says Justice has “no apparent authority to close schools based upon the arbitrary and capricious metric.”
The individual plaintiffs say they are concerned about the “impact the absence from consistent in-person instruction is having” on their children. They mention some of their children having anxiety issues and having sought assistance from therapists. One student is under an Individual Education Plan and requires extra assistance from teachers. One student plays sports and is worried skills will atrophy through a long shutdown. They mention issues with the hybrid of online learning and in-person classes as well as issues with the online learning portal.
“In essence, defendant’s executive orders are heavy-handed and never-ending,” the complaint states. “The citizens and business owners within the state are required to live in constant fear and worry that another shutdown is imminent.
“Instead of dealing with the purported issues of COVID-19 outbreaks with the precision of a surgical scalpel, defendant brings down a proverbial sledgehammer causing destruction of the livelihood of citizens.
“Defendant, by being permitted to continually execute executive orders without legislative oversight or citizen input violates the due process clauses of the United States Constitution.”
The plaintiffs say Justice has violated the Takings Clause of the Fifth Amendment of the U.S. Constitution, which states, “Nor shall private property be taken for public use without just compensation.” They says Justice has taken their private property because they can’t lawfully operate their businesses like normal.
They also say he has violated their substantive due process, procedural due process and equal protection as well as their First Amendment right to assembly and by prohibiting live entertainment.
The plaintiffs ask the court to declare Justice’s executive orders declared unconstitutional and unlawful, to prohibit Justice from enforcing the executive orders and to declare the rights of the plaintiffs and others have been violated. They also seek court costs, attorney fees and other relief.
They are being represented by attorney Paul J. Harris of Wheeling. The case has been assigned to District Judge John Preston Bailey.
U.S. District Court for the Northern District of West Virginia case number 5:20-cv-00201
