CHARLESTON – After his lawsuit regarding Gov. Jim Justice and the state’s enforcement of the school re-entry map was dismissed, a Charleston attorney said he plans to ask a judge to reconsider his ruling.
On September 25, Alex McLaughlin’s case and motion for preliminary injunction were dismissed by Kanawha Circuit Judge Tod Kaufman.
During that two-hour hearing, McLaughlin said his issue wasn’t simply about Justice, the Department of Health and Human Resources and the state Board of Education’s color-coded map or Justice’s emergency orders. He said it’s more about how they apply only to schools, saying it should apply to other activities as well if a lockdown or tightening measures are the way to suppress the spread of COVID-19.
“He’s infringing on the right to education,” McLaughlin told Kaufman.
But following Kaufman’s dismissal, McLaughlin said he plans to try again.
“I will ask the judge to reconsider his ruling on the motions to dismiss and set those for a proper hearing,” McLaughlin told The West Virginia Record. “Respondents’ motions were never set for hearing by any order or notice. The only motion set for hearing by the court’s September 16 order was my motion for preliminary injunction. Respondents advanced a slew of arguments in support of dismissal for the first time three days before the hearing and another round of arguments the day before the hearing.
“I was not given an opportunity to respond in writing and I was not given notice that these issues would be heard at the hearing. It is fair enough to consider the issues as part of the ‘likelihood of success on the merits’ prong of the preliminary injunction standard, but not to go forward to a final dismissal — that’s why the prong is called ‘likelihood of success on the merits’ not ‘success’ on the merits and the motion is called ‘preliminary.’”
McLaughlin said there’s no rush to final judgment or need for expedited decision on dismissal.
“Not only is a litigant ordinarily given an opportunity to respond in writing to motions to dismiss, but I would ordinarily have been given an opportunity to amend my pleading to cure any real or perceived technical deficiency,” he told The Record. “Instead, I was told to hire a better lawyer.
“So, I definitely will challenge the judge’s ruling on the motion to dismiss and ask that discovery go forward toward a final hearing on final injunction. And, I will hire experts and proceed with my case but not in such an expedited fashion.”
McLaughlin said he thinks a full record with fully developed experts and testimony would help.
“I am obviously not going to win soon,” he said. “Hopefully kids will be back in school soon and this will be moot, but I am not counting on it. So, I think it may be time to take the long view.”
McLaughlin also said he thinks the biggest issue is that much of the public still thinks of COVID-19 the same way we did in March “as a new, unprecedented threat that we do not know much about, so we have to proceed based on good intentions and intuition.”
“I think because of that, the public is still willing to accept our governor shutting down schools for thousands of kids based on the hunch of a critical care physician that the virus is more likely to be transmitted when children gather for eight hours a day to learn than when adults gather for an hour a day to eat and drink,” McLaughlin said. “My own view is that we are over six months in and we have access to a large amount of data that has been collected over those six months, and our government and our public health experts had all summer to collect data from daycares and summer camps, whether they did or not, and over $1 billion to spend on that data collection.
“Therefore, in my view, we should be making decisions and distinctions based on the data that we have and that we should have collected about the relative risks of transmissions in bars, restaurants, camps, daycares, and schools, rather than relying on the hunch of a critical care physician that schools are more dangerous than restaurants because people spend eight hours a day there with the same people rather than one hour at a time there with different people each time.”
He said he thinks that hunch is not supported by the data.
“It is, in fact, contradicted by the data, which I tried to point out during the hearing,” McLaughlin said. “But I think we are still unfortunately at a place where people are willing to give intuitively appealing hunches a chance and not demand scientific evidence to support them.”
Despite the setback at the hearing, McLaughlin said he still thinks it was a victory for constitutional democracy.
“Legal cases are always very hit and miss, especially when a citizen is taking on the chief executive of the state,” he said. “As much as I hoped to win – as much as I thought I deserved to win – I did not expect to win.
“I did not think I was entitled to a favorable ruling, but I thought I was entitled to a hearing, and I got that. Hopefully, I was able to nudge the conversation in a positive direction – toward demanding that our decisions be made by science, not intuition.”
McLaughlin originally filed his petition September 4 in Kanawha Circuit Court against Justice, the state Board of Education and the DHHR to keep them from enforcing portions of the West Virginia School Re-entry Metrics and Protocols program. The petition also seeks to compel Justice to convene the Legislature immediately to properly adopt measures to keep state government operating in a period of emergency.
In his original 23-page petition, McLaughlin says the school re-entry program was first introduced August 14, but it was revised shortly thereafter because Justice “decided that we needed to pivot just a little bit.”
Specifically, McLaughlin sought to prohibit the government agencies from enforcing against Kanawha County public and private schools the “unconstitutional discrimination against schools in counties that meet the criterion for ‘orange’ status prior to the scheduled September 8, 2020, school year start date.”
“Irreparable harm to our education system will result if this instant action is delayed by 30 days,” wrote McLaughlin, who has two school-aged children.
In one motion, McLaughlin said Justice’s Executive Order 68-20, which was dated September 4 (the same day as McLaughlin’s petition), discriminates against a constitutionally protected fundamental right to education “on its face.”
The current plan is a color-coded county-by-county system that measures, in general, a county’s daily average of new COVID-19 cases per 100,000 residents. Each Saturday, the statewide map is locked in for schools for the following week. Counties with the lowest cumulative average of active cases are labeled green, followed by yellow, gold, orange and red.
“Obviously, ultimately, I want my children to go to school in-person and be able to get back to life,” McLaughlin previously told The Record. “My personal opinion is that we can do it safely now, and that we shouldn’t start re-introducing shutdowns until we see real evidence of demonstrable sickness – not just increased ‘cases’ defined as positive tests – and evidence that our hospitals might be stressed if we don’t act immediately.
“But, this is still a constitutional democracy and these decisions need to be made democratically, obviously not by me, but also not by the governor in closed-door sessions and especially not by special interest groups. So that’s why I filed this.”
In his motion, McLaughlin said his children haven’t been able to attend in-person classes in Kanawha County yet and may not “for many weeks to come.”
“Being denied access to the school building as a place of instruction causes irreparable harm not only from the perspective of the mental and social well-being of children and the quality of instruction they receive, but also from the perspective of equality of access to the remote education being offered,” the motion states. “For example, for those who, like petitioner, are single parents required to work outside of the home during regular school hours, and for many others for myriad reasons, there is often no adult available to sit with elementary-aged children (including my third-grader) while children attempt to participate in the virtual lessons. Kanawha County school officials acknowledge that this puts children at a special disadvantage.”
Regarding the schools, McLaughlin’s petition says “free schools” provides taxpayers with “critical childcare and child supervision for ‘free.’”
“For the students themselves, non-voters who are being isolated and kept in a seemingly permanent state of reduced productivity and lowered expectations by the governor’s decrees, ‘free schools’ has been in this state, since its inception, the single most important productive and social activity that we provide for them,” McLaughlin writes.
“Until COVID, the right to ‘schools’ and the right to ‘education’ have been regarded as essentially inseparable.”
McLaughlin says the current school re-entry plan discriminates against counties with 10 or more cases per 100,000 population, especially the “orange” and “red” counties. He says it also discriminates against essential and non-essential workers by “protecting teachers, a politically powerful group, from the obligation to show up to work and take on whatever viral perils may exist even in facilities that are able to comply with all of the social distancing, masking and hygiene protocols deemed to be sufficient for the protection of workers.” He also says it discriminates against counties that report 10 new cases per 100,000 population compared to counties that report 10 new cases of flu per 100,000 population “given that the flu is universally recognized as being a greater threat to school-age children than COVID.”
“Respondents, who conducted their meetings and deliberations regarding their school re-entry program behind closed doors, have not identified the compelling interest they seek to serve by using these discriminatory categories,” McLaughlin writes. “Governor Justice provided us with no names of any qualified infectious disease expert or epidemiologist who may have worked on this – almost certainly because there are none – and no information about what considerations went in the decision or how the metrics they chose were ‘narrowly tailored’ to meet a compelling state interest.
“Instead … it appears that the metrics and protective measures were arbitrarily chosen, as by throwing darts at a dartboard. A more sinister possibility is that these metrics and measures were tailored quite carefully to satisfy some illegitimate interest, such as the behind-the-scenes maneuvering of a powerful interest group, like the teachers’ unions, who stand to gain from the closing of school buildings by receiving full pay for performing only a small portion of their contractual duties, and by being relieved entirely of their contractual obligation to supervise our children while parents work, while lower-paid daycare workers are forced to assume whatever perils may genuinely be associated with supervising children.”
As for the Legislature being convened, McLaughlin’s petition notes that it appears Justice “does not believe that he is under any obligation to convene the Legislature to legislate, and that he can, in secrecy, convene a panel of undisclosed ‘people from West Virginia, out of state and around the world, our medical experts, the education community, our teachers and counties, and many more’ to restrict, modify and otherwise alter the right of the people to freedom of movement, freedom of assembly, the right to education and the right to ‘free school’ embedded in West Virginia Constitution for so long as he, in his sole discretion, declares that an emergency exists, or at least until the Legislature convenes itself.”
McLaughlin says the Legislature lacks the will or strength to convene even remotely to hold public hearings, to investigate facts, to take testimony from experts and citizens, to consider data and to pass laws for the continuity of the government during the COVID pandemic.
“The West Virginia Constitution does not tolerate the governor’s indefinite usurpation of the legislative power in times of disaster or emergency, nor does it tolerate the Legislature’s abdication of that power,” McLaughlin writes.
“The governor must also convene the Legislature because the governor, in promulgating the School Re-entry Metrics and Protocols program and then almost immediately revising it in secret over a single weekend, is making the laws, not enforcing them.”
McLaughlin seeks a Writ of Mandamus and/or Prohibition prohibiting the respondents from enforcing in Kanawha County against public and private schools the “orange” level provisions of the school re-entry plan.
Also, McLaughlin seeks a Writ of Mandamus and/or Prohibition requiring Justice to immediately convene a special session of the Legislature to properly continue government operations.
Earlier this month, a George Washington High School student-athlete filed a motion to intervene in McLaughlin’s case.
On September 18, Robert Tyler Alexander filed a motion to intervene in McLaughlin’s case. He also filed a motion for preliminary and permanent injunctions against the state’s violation of his constitutional rights. Alexander says he is a senior at GW and a member of the varsity football team. He says he hasn’t been allowed to attend school in person or participate in football games and sometimes practices.
“In addition to being denied the opportunity to participate in scheduled football games for the sake of that entertainment alone, Alexander is missing a short and irreplaceable window in which to attract the attention of college football recruiters and earn a football scholarship to college,” the motion states. “The opportunity is not hypothetical or a fanciful wish. Alexander was named the West Virginia first team preseason all-state quarterback by the Charleston Gazette-Mail.
“In short, loss of his senior high school football season not only denies Alexander what should be a memorable and enjoyable final season of high school football, but also the opportunity to earn a college scholarship, which potentially alters adversely his career and life path going forward.”
Alexander, who goes by R.T., is the son of former NFL running back Robert Alexander, who played for South Charleston and West Virginia University. Last season, R.T. Alexander threw for 2,428 yards and 30 touchdowns for the Patriots, who finished 8-4 with a berth in the state Class AAA quarterfinals. He played for St. Albans his freshman year before his family moved to Valdosta, Georgia, for his sophomore season.
Alexander was represented by attorney J. David Fenwick of Goodwin & Goodwin in Charleston.
Kanawha Circuit Court case number 20-P-246
