September 28, 2020

COVID-19 and Unprecedented: Litigation Insights, Issue 25
This 25th edition of Unprecedented, our weekly update on COVID-19-related litigation, sees yet more litigation over government restrictions on business and mass-gatherings. Several of these cases have seemingly been prompted by the federal court opinion striking down Pennsylvania's restrictions, but others have highlighted the seeming inconsistency between enforcing mass-gathering restrictions against one group while permitting them in the context of protests and demonstrations. Also in the mix for this week are updates on personal injury litigation involving cruise liners and a major voting rights case from Pennsylvania that is now headed to the U.S. Supreme Court.
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GOP Will Ask Supreme Court to Limit Mail Voting in Pennsylvania in First Post-RBG Test
"Republicans plan to ask the Supreme Court to review a major Pennsylvania state court ruling that extended the due date for mail ballots in the key battleground state, teeing up the first test for the Supreme Court since the death of its liberal leader Justice Ruth Bader Ginsburg."

Why this is important: Supporters of Democratic presidential candidate, Joe Biden, may want to delay celebrating the Pennsylvania Supreme Court's ruling to relax the state mail voting deadlines. This ruling mandates that "Pennsylvania must accept ballots postmarked by Election Day, as long as they arrive within three days." Being that Democrats are more likely to vote by mail in November than their Republican counterparts and that President Trump won Pennsylvania in 2016 by less than one percentage point, this ruling is being viewed as a win for the Democratic Party. The Republican Party of Pennsylvania, refusing to go down without a fight, has asked the Court for a partial stay of its judgment until the U.S. Supreme Court can rule on the matter. The Supreme Court has not granted certiorari as of the time of this writing, but voters on both sides will be anxiously waiting to see how the Court will handle this appeal without their strongest voting rights defender, Justice Ruth Bader Ginsburg. Further, without Justice Ginsburg the Court is currently composed of a 5-3 conservative majority. This could give us the first glimpse at how the Court will handle these types of cases in the future, with President Trump's next Supreme Court nomination making the Court an overwhelmingly conservative 6-3 majority. --- Kellen M. Shearin
Morgantown, W.Va. Bar Owners File Lawsuit Claim Closure Orders Violate Their Rights
"The suit alleges the series of executive orders dating back to March have violated their state and federal constitutional rights by limiting their ability to operate without due process."

Why this is important: Whether it takes a bit longer for things to cross the Appalachians, or whether West Virginia businesses were simply biding their time, lawsuits over COVID-19 restrictions have now come to the Mountain State. A group of bar owners in Morgantown (home to West Virginia University) has challenged restrictions imposed by the Justice administration and the city, as well as their enforcement by the State Commissioner of the Alcohol Beverage Control Administration. With the exception of republican-form-of-government and separation-of-powers claims, which are likely doomed to fail, the bar owners make the same allegations that we have seen in other cases: the occupancy and service restrictions go beyond what is reasonable for controlling the spread of the novel coronavirus, treat bars differently from other similarly situated businesses, offer no mechanism for pre- or post-deprivation challenges, and take their property without just compensation. While the claims might be the same, though, this is one of the first lawsuits to be filed after a federal court in Pennsylvania struck down that state's mass-gathering restrictions in response to similar challenges. Whether that decision influences the progress of this case thus makes it one worth monitoring. --- Joseph V. Schaeffer
Restaurant Targets Nashville COVID-19 Restrictions in Lawsuit, Cites False Story on Mayor's Office
"A prominent downtown Nashville restaurant has filed a new federal lawsuit against the city, arguing COVID-19 restrictions violate the owner's rights to earn a living."

Why this is important: The trend of lawsuits challenging COVID-19-related restrictions continues around the country as a downtown Nashville restaurant files suit against the city, alleging that the city's COVID-19 restrictions violate the restaurant owner's constitutional rights to earn a living. The lawsuit alleges that the city failed to use the least restrictive means to achieve the compelling government interest of "flattening the curve." As evidence, the lawsuit cites a since-retracted story alleging that the Mayor's office purposely withheld the number of cases linked to downtown bars and restaurants because it is "so low." The Nashville restaurant is also one of the plaintiffs in a separate lawsuit fighting citations for violations of a citywide mask mandate. This case continues the trend around the country of lawsuits challenging the constitutionality of COVID-19-related restrictions. --- Kayla I. Russell
Ohio County, W.Va. Businesses, Parents File Lawsuit Against Gov. Justice Over COVID-19 Restrictions
"Two parents and five Ohio County businesses have filed a federal lawsuit against Gov. Jim Justice over what they see as the governor's 'never-ending executive orders mandating restriction of constitutionally protected activities.'"

Why this is important: Like the lawsuit filed against the Justice administration and the City of Morgantown by a group of bar owners, this lawsuit by parents and Ohio County businesses challenges West Virginia's COVID-19 restrictions. But unlike the Morgantown lawsuit, this one makes explicit its reliance on the County of Butler decision, which struck down Pennsylvania's restrictions on mass-gatherings and businesses. This lawsuit also adds claims directed to the Justice administration's restrictions on schools, which the parent plaintiffs allege have denied their children access to education. This latter issue in particular bears watching, as lawsuits over educational access seem likely to pick up as the school year continues. --- Joseph V. Schaeffer
Capitol Hill Baptist Church Sues D.C. Over COVID-19 Mass Gathering Restrictions
"Capitol Hill Baptist Church filed the suit in U.S. District Court, seeking the right to 'gather for corporate worship free from threat of governmental sanction' and saying it wants Mayor Muriel Bowser and the District of Columbia to stop violating its First and Fifth Amendment rights."

Why this is important: Of the many lawsuits that have been filed over COVID-19 restrictions, those filed by churches have found the most success. The reason, of course, is found in the First Amendment's protection of the free exercise of religion. What makes this lawsuit interesting is that it adds a claim under the Religious Freedom Restoration Act, 42 U.S.C. ยง 2000bb et seq., alleging that the District of Columbia's mass-gathering restrictions infringe on the church's sincerely held religious belief that physical gathering is central to worship. Also notable is the complaint's discussion of how the District of Columbia has encouraged and facilitated protests against racial injustice--a point the church makes both to show discrimination and the absence of narrow-tailoring from the current restrictions. Indeed, it is fair to ask whether the District of Columbia has undermined its arguments against mass-gatherings by failing to enforce those restrictions in the context of protests. Whether the federal district court accepts this argument is a reason for monitoring this case as it proceeds. --- Joseph V. Schaeffer
California Couple Who Contracted COVID-19 Aboard Ship Sues Princess Cruises 
"An Alhambra couple and their cousin are seeking more than a $1 million in damages from Princess Cruises, alleging the company failed to take steps that would have prevented them from contracting COVID-19 in March aboard a ship that sailed from Sydney, Australia."

Why this is important: On February 18, 2020, CDC issued a statement warning current and future passengers of Princess Cruises of the "high burden of infection" and "potential for ongoing risk" to passengers on ships where COVID-19 outbreaks had been present. Despite this warning, Princess Cruises continued to sail during the early months of COVID-19 pandemic--and passengers continued to board the cruise ships. Now, some of those passengers who contracted COVID-19 have filed suit against Princess Cruises, alleging that the company "recklessly" decided to continue boarding its ships when passengers on prior cruises had been infected with COVID-19. Given that it appears both Princess Cruises and the passengers were placed on notice by CDC and others about the risks of COVID-19 on cruise lines, prior to boarding, it will be interesting to see how these lawsuits progress--and if they simply digress into a blame game centering around assumption of the risk. --- James E. Simon
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