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Federal judge declines to halt Justice’s mask mandate

U.S. District Judge Robert C. Chambers declined to strike down Gov. Jim Justice’s mask mandate today.

“The governor has made a rational decision that wearing a mask is an appropriate response to a public health crisis during a pandemic,” Chambers said at the conclusion of a two-hour hearing in Huntington.

Chambers later added, “The governor has properly relied upon medical science in determining these restrictions must persist.”

This is the second federal ruling — on top of three state court rulings — to uphold the governor’s use of emergency powers during the pandemic.

In this instance, a Putnam County business, Bridge Café and Bistro in Hurricane, was trying to get a preliminary injunction or temporary restraining order. The restaurant contended that the mask order violates federal constitutional protections, including people’s right to free speech in the sense that masks have become a political issue.

A lawyer for the restaurant, John Bryan, contended that the governor’s positions — including the stated possibility of obstruction of justice charges — are an overreach of state law. Bryan emphasized how long the governor’s emergency orders have been in effect without any legislative action.

Chambers concluded those arguments were unlikely to prevail on the merits.

“I deny the plaintiff’s request,” Chambers said.

Justice announced a statewide face covering requirement in response to the coronavirus pandemic on July 6. Earlier this month, Justice tightened the mandate somewhat, saying facial coverings should be worn in public places even if social distancing is possible.

During a press conference, while discussing the modifications, Justice held out the possibility that law enforcement officers could charge individuals and businesses with obstruction of justice for disobeying.

Speaking in court today, Bryan acknowledged the governor may issue executive orders but questioned the degree to which the state can enforce them without additional legislative action.

“I think the governor can say what he wants in his executive orders, but they’re unenforceable,” Bryan said. “The governor cannot cloak his executive order under the guise of it being some enforceable West Virginia law.”

Chambers said that position is confusing.

“How is it the governor has the authority to issue orders like the mask mandate and like the stay at home restrictions and that those become valid policies, but he can’t take any action to enforce them?” Chambers asked.

“I’m puzzled at what you believe the governor can do to enforce what you acknowledge he has the authority to do,” the judge said.

Bryan responded that the penalty described by the governor essentially creates law.

“He’s attempting to create a law. I think it’s unconstitutional,” Bryan said.

“I’m not challenging that the governor has emergency powers or that he has the ability to issue executive orders but the way he’s done it to say ‘This is a new law in West Virginia,’ I don’t think he has the authority to do it.”

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