The judge deciding a legal challenge by Clark County bar owners seeking to reverse Gov. Steve Sisolak’s order closing their businesses to fight the spread of COVID-19 promised a quick ruling Thursday after a 90-minute hearing.
In the case before District Judge Kerry Earley, 62 plaintiffs claim the governor’s July 10 directive that ordered bars closed in Clark, among other counties, unfairly singled out their businesses despite their compliance with mask-wearing and other social distancing directives.
What emerged in Thursday’s hearing was the rapidly evolving nature of the state’s efforts to curb and combat the virus, as well as the question of whether the court can rule on a matter that has essentially become a moving target.
Since the bar owners filed their challenge on July 14, the governor has laid out a new set of criteria for henceforth determining openings and closings of businesses across the state on a narrower, localized basis.
The plaintiff’s’ attorney, Dennis Kennedy, seized on that shift as tantamount to an admission by the governor that his original directive was improperly imposed. Kennedy also highlighted the governor’s remark at a July 27 press briefing where Sisolak said in “hindsight” that closing all bars was not “the fairest way to do it, because I have a lot of bars that I’m being told were extremely proactive and extremely effective in terms of mitigating and taking this appropriate protocols, others just kind of went whatever happened, happened.”
“This lawsuit does not question the governor’s authority to act in emergencies,” Kennedy said. “The question is, the constitution doesn’t permit him to do things that are really without any rational basis and that have no evidentiary or factual support.”
As the state’s efforts to combat and contain the virus have evolved, and with more data on the virus has been obtained, Sisolak and his health advisers have determined that much of the continuing spread arises from infected people returning to work and from large family gatherings.
Whatever the actual cause of the outbreaks, said Deputy Solicitor General Craig Newby, representing the state, the governor is not limited from taking whatever action deemed necessary to contain the virus.
Ideally, Newby said, regulations would have been drawn up under normal law and rulemaking procedures rather by set forth under executive order, but, “We don’t have that level of perfection while trying to get this virus under control.”
He added that the state does not dispute the potential for “significant economic harm” the bars face, but that Nevada had to balance that against the “irreparable harm associated with allowing increased spread of COVID-19, delaying the eventual full reopening of Nevada’s economy versus the start and stop that has us in court here today.”
Contact Capital Bureau reporter Bill Dentzer at firstname.lastname@example.org. Follow @DentzerNews on Twitter.