Lawsuit fails to overturn Inslee’s COVID-19 executive orders

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Clockwise from top left, Judge Kristin Ferrera and attorney Joel Ard, deputy attorney general Zachary Pekelis Jones and solicitor general Jeffrey Even in a June 24 hearing in Cuevas et al v. Inslee.

WENATCHEE — A Chelan County Superior Court judge denied 46 plaintiffs their request for an order that would have ended Gov. Jay Inslee’s state of emergency, established in March to cope with the COVID-19 pandemic.

The coalition of local elected officials, business owners, pastors and other plaintiffs did not show that Inslee had abused his discretion as governor by proclaiming the emergency, or by not ending it after conditions changed and health services no longer feared being swamped by coronavirus patients, Judge Kristin Ferrera ruled.

“A temporary restraining order is an extraordinary remedy, and the entitlements have to be clear,” Ferrera said in a Wednesday hearing via Zoom. “I can’t issue an injunction at this time.”

Inslee’s original emergency order went into effect March 23rd and barred certain businesses and gathering places from operation — including restaurants, taverns and indoor church services. On June 1, that order was superseded by the governor’s Safe Start plan, a four-phase reopening that allows counties to return to normal business gradually, as they show improvement in viral containment, hospitalizations and other factors. Chelan and Douglas County moved from Phase 1 to a “modified” Phase 1 in early June, allowing some shuttered businesses to restart with social-distancing limitations.

But plaintiffs’ attorney Joel Ard told Ferrera the powers exercised by the governor create too much uncertainty for his clients’ businesses to reopen and plan for the future.

“It is an imposition on businesses, in the current state of affairs, to have the governor tell them, you can open at whatever level I allow you to, only when I allow you to, and if your neighbors don’t behave themselves, I’ll tell you you have to close again,” Ard said.

Plaintiffs in the Chelan County case included Wenatchee City Councilmembers Jose Luis Cuevas, Linda Herald and Travis Hornby; Grace City Church pastors Josh McPherson and Adam James; clothing store owner and state Republican committeewoman Marcy Collins; Wenatchee restaurateurs Kevin Smith and Shon Smith; and NCWLIFE host and former state representative Cary Condotta. Their lawsuit claimed a state pandemic response law, put in place in 2006 to guard against influenza outbreaks, should have dictated Washington’s handling of the virus, not the governor’s executive actions.

The Attorney General’s office responded that the state’s governor holds authority to declare and maintain states of emergency, and the flu statute did not address a novel pandemic like the COVID-19 crisis.

Ferrera agreed. “The main issue is whether the governor has the authority to issue this proclaim, and, well, really to terminate it — whether it should have been terminated,” she said. “That’s the main issue. Whether this statute speaks to the situation we’re in or not, it does not change the fact the court has to be able to determine that the governor abused his discretion in failing to terminate the state of emergency as to Chelan and Douglas County.”

She said while the flu statute may provide some guidance in a statewide health emergency, “it would be a huge stretch to say that this is supposed to be the plan that’s in place if we’re in the middle of a pandemic, regardless of whether it’s influenza or not. It’s a preparedness statute.”

Ard brought the action along with similar lawsuits in other counties. Some of the plaintiffs originally joined a lawsuit in Douglas County, which was soon withdrawn, and then joined the Chelan County case. Other plaintiffs — including all three Douglas County commissioners and Wenatchee City Councilmember Ruth Esparza, each suing as an individual — dropped out of the case altogether. All plaintiffs argued the COVID-19 response had needlessly damaged the local economy, and asked that authority for pandemic rulemaking be fully turned over to the Chelan-Douglas Health District, based in East Wenatchee.

But on Wednesday, Ferrera said she saw no strong evidence in the case file that local health authorities could manage the response against the virus, which by that time had infected 501 known Chelan and Douglas County residents and killed nine.

“From the record, it appears that the Health District, at least some of the officers of the Health District, don’t think they can,” she said. “And my concern is you’re asking me to impose a restraining order lifting the restrictions. … If I were to lift those restrictions today, what would that look like? Would we be, tomorrow, ‘Everything’s opened back up,’ like there’s no COVID?”

The two-county Health District would become responsible for aspects including public education, containment measures, case surveillance, medication and vaccine management, Ferrera said — most of which it now carries out with state resources and guidance.

“It seems to the court, based on the information that’s in the record, that the Health District has been struggling with the resources they have right now, even with the assistance of the state, in addressing the pandemic.”

Ferrera herself was diagnosed with COVID-19 in late May. She continued to hear some cases from home and has since recovered.

Deputy attorney general Zachary Pekelis Jones argued that the plaintiffs had no grounds to challenge the Governor’s emergency powers, even though restraints on businesses and gathering places may have affected their livelihoods.

“Economic challenges they face, and the fears of the future for their businesses and their families, those are real, and nothing we say here today should ever be taken to undercut or undersell the reality of those costs,” Jones said.

The temporary restraining orders against executive actions are rarely granted, he said, and the harms they alleged didn’t meet the legal standard to impose one.