CHARLESTON — Kanawha Circuit Judge Carrie Webster has denied a petition for injunctive relief from the West Virginia Education Association during a hearing that was challenging Gov. Jim Justice's map of COVID-19 exposure.
At the end of the October 23 hearing, Webster said when making her decision that the attorneys for both sides spent considerable time researching the law and cases to support their positions. She denied the petition for a preliminary injunction and granted a petition to dismiss the case.
"The court notes that this entire matter — that, of course, has been horrifically and devastatingly felt by states, counties, across the country and worldwide — has no easy answers," Webster said during her ruling.
In denying the petition, Webster said that even with the passage of time and when history repeats itself, sometimes the solutions to an ever-evolving society aren't easily addressed.
"In this instance, the governor has the authority to implement his county alert system and he has the authority to promulgate metrics under applicable state code or in a state of emergency 'may perform and exercise other functions, powers and duties that are necessary to promote and secure the safety and protection of the civilian population,'" she said, reading from West Virginia code.
Webster said it was a tough decision.
"I think it would be very hard for any judge to look at what the executive of their state is doing and to, essentially, thwart the ability to do it unless it somehow ran afoul of the Constitution," Webster said. "I bet all of us...we can all probably agree that this is a really tough issue."
WVEA President Dale Lee said the union, the state's largest for teachers, was disappointed with the decision.
"We are disappointed in the outcome of today's hearing," Lee said. "By choosing to use the lesser of the infection rate or the percentage of positive tests, WVEA and its members believe the governor's color-coded map changes have created a false picture of COVID spread. That has resulted in both education employees and students being placed in unsafe situations."
Lee said the state's COVID-19 numbers continue to increase and the school's re-entry map appears greener, but there are multiple schools statewide closing and quarantining due to the number of active cases.
"To be frank, we knew we were fighting an uphill battle in challenging the governor's change in the map," Lee said. "Nevertheless, we needed to explore every possible avenue on behalf of our members' and students' safety."
Lee said the agency would continue to work with the county superintendents and explore other ways to keep the schools safe for both students and employees.
WVEA was challenging the governor's map, saying it was vastly different from the Harvard map. They argued the governor's map made it look like the state was doing better with COVID-19 spread than it really is.
In the petition, the WVEA says some school systems in the state have trouble finding substitute teachers while teachers are quarantined. It says teachers are being forced to teach more classes and do significant additional work because some students are in the classroom while others are learning virtually.
It also says Justice has refused to spend “tens of millions of dollars” of money provided by the federal government to increase safety.
The petition was seeking an immediate temporary restraining order and eventual permanent restraining order forcing Justice and his agents to strictly follow the criteria of the Harvard Map, requiring the state to keep track of those who are tested and that those who are tested more than one time in two weeks be counted only once and forcing Justice release additional federal funds to increase the safety of students, education personnel and their families.
