The Justice administration is two for two in its defense of court challenges to its Covid-19 map and the metrics that determine whether public schools can open and whether extracurricular activities can take place.
The latest decision came yesterday when Kanawha County Circuit Court Judge Joanna Tabit rejected the arguments of a George Washington High School football player. Quarterback R.T. Alexander contended the metric kept Kanawha County schools shut down for weeks—they are open now—thus damaging his prospects for an athletic scholarship.
As our Brad McElhinny reported, “Judge Joanna Tabit said there is no constitutional right to extracurricular activities, no certainty that the high school senior would be harmed long term, and that ruling otherwise would unduly hamper the Governor’s emergency response.”
Earlier, Kanawha County Circuit Judge Tod Kaufman also rejected a petition that challenged the validity of the map. At least two more challenges to the Governor’s authority during the pandemic are pending—one by the West Virginia Education Association and another by owners of bars in Morgantown that have been shut down by the Governor’s orders.
Each case is separate with unique arguments, but if the first two cases are any indication, those challenging the map and the Governor’s power during this pandemic have an uphill climb.
Attorney Ben Bailey, who has represented the Justice administration in the first two cases, explained Tuesday in court that a usurpation of the Governor’s authority by the judiciary at this time could trigger chaos.
“All these cases are pending in front of different courts at different times,” Bailey said. “Any action by any court in any of those cases will disrupt and upset the plans the Governor and the DHHR and the public health officials have put in place to try to keep us on track and keep our numbers down and keep West Virginia in the relatively admirable position it is vis-à-vis Covid-19.”
That is clearly a warning that will resonate with the bench. Does a judge really want to insert himself or herself into the complicated and controversial response to the pandemic, especially now when West Virginians are at least becoming more familiar with the map and the metrics?
Also, as I have written here before, the authority of the state’s Governor during a state of emergency is extremely broad. There is a legitimate argument that it is too broad, but that is a matter for the Legislature to decide.
Meanwhile, the Legislature could, if it chooses, call itself into session to assume greater control over the response to the pandemic, but there has been no indication that legislative leaders, who are the same party as the Governor, are interested in doing that.
The Covid-19 mapping and metrics are not perfect, but they are functional. That functionality, along with the constitutional and codified authority of the Governor to act during a state of emergency, mean it will be difficult to for opponents to win an argument in court to change them.