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Lawsuits challenge St. Louis stay-at-home orders

Downtown St. Louis

A once-bustling stretch of Washington Avenue in St. Louis is nearly deserted while restaurants, the MX Movies and the America’s Center Convention Complex remain closed. (Photo by Jeff Roberson/AP)

Plaintiffs in two federal lawsuits are challenging stay-at-home orders in St. Louis and St. Louis County, arguing that the orders violate their Constitutional rights of association and assembly and due process by limiting business operations and religious gatherings.

In one case, filed April 28, the plaintiffs are St. Louis County residents who say the county order has curtailed their First Amendment rights to exercise their religion.

In the other, filed May 4, the plaintiffs are owners of non-essential businesses who assert that orders in St. Louis County and city of St. Louis conflict with orders at the state level and infringe upon their civil liberties by forcing them to remain closed. They want to be able to open their businesses.

The plaintiffs in the first suit are Lauren Hawse, Frank and Jean O’Brien and Dr. Stephen J. Pieper. They’ve filed suit against County Executive Sam Page and Dr. Emily Doucette, director of the St. Louis County Public Health Department.

The plaintiffs in the business suit are SH3 Health Consulting LLC, a company owned by Allan Finnegan that runs an Anytime Fitness gym in Manchester, and Elder’s Antiques LLC in St. Louis, owned by Cherri Elder.

Page and Doucette are also defendants in the second suit, as are St. Louis Mayor Lyda Krewson and Dr. Fredrick Echols, the director of the city health department. Plaintiffs in both cases are seeking injunctive relief.

In the suit challenging limits on religious gatherings, the plaintiffs sought intervention from the 8th U.S. Circuit Court of Appeals to hasten a preliminary injunction. On May 8, the court denied their request.

Their petition for a writ of mandamus followed an order May 3 by U.S. District Judge Ronnie L. White, allowing for additional briefing on whether the plaintiffs have standing to sue. In the order, White said he first would address standing before holding a hearing.

He set a tentative date for a May 12 hearing, should he rule that the plaintiffs have standing.

While the complaint includes references to the plaintiffs’ church sizes and attendance at religious services, their attorney, Michael Quinlan, said the relief they’re seeking isn’t limited to worship services. He said the impetus for the suit was a funeral service at which attendance was curtailed by the order.

He said his objective in filing the suit is to ensure religious exercise is treated equally with other essential activities.

“We want our worship and our gathering, to praise God, to worship God, to console one another in the context of our faith, to receive the same treatment as all the other so-called essential activities,” he said.

He added his clients are willing to abide by guidelines for reducing transmission of the virus, including practicing social distancing.

Neal Perryman of Lewis Rice is representing the county. He did not respond to a message seeking comment on that case.

In the suit brought by the businesses, the plaintiffs alleged that the city and county orders conflict with a state regulation that states “only the director of the [state] Department of Health and Senior Services or the director’s designated representative shall have the authority to close a public or private school or other place of public or private assembly.”

They also allege that their classification as non-essential businesses infringes on their rights to association and assembly.

On May 6, U.S. District Judge Stephen R. Clark held a hearing on the businesses’ motion for a preliminary injunction. As of midday Friday, he had not ruled in the case.

During arguments, the plaintiffs’ attorney, Bevis Schock, conceded that, at present, the director of the Missouri Department of Health and Senior Services has not declared a statewide pandemic.

He said “there is no question that we’re in a statewide pandemic,” however, and he asked Clark to take judicial notice of the big picture of COVID-19 in the state.

Clark questioned the parties about whether an official declaration is needed, or whether there can be a de facto declaration.

Both the county and city argued that the court should decline to exercise its jurisdiction in the case.

Robert Dierker, who represented the city, said Schock “has waded into one of the more complex areas of law” in terms of interplay between state laws, regulations and the authority given to constitutional charter cities and counties.

“This is not the kind of situation that calls for federal judicial intrusion into the management of this public health crisis or in this issue of construing state law,” he said. “We submit the court should dismiss, certainly abstain, and we have also argued that the merits of Mr. Schock’s complaint are insufficient.”

Perryman said that without a statewide declaration, there is no case. He said Schock has been “very candid about what the case is and isn’t.”

“At this point, the case isn’t,” he said. “If you don’t have a state-law conflict, you can’t have a deprivation of civil rights.”

The cases are SH3 Health Consulting LLC et al. v. Page et al., 4:20-cv-00605, and Hawse et al. v. Page et al., 4:20-cv-00588.

Coronavirus crisis

This item is part of Missouri Lawyers Media's free coverage of how the COVID-19 pandemic has affected the legal community.

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