With COVID-19 cases continuing to climb in Iowa, Gov. Kim Reynolds still faces a court challenge questioning her right to impose limits on business activity during a pandemic.

The owners of several central Iowa taverns are pursuing a civil lawsuit against Reynolds and the Iowa Department of Public Health, alleging Reynolds unlawfully imposed pandemic-related restrictions on taverns and bars last summer.

The bar owners lost at the district court level last year when a judge dismissed their case. They appealed that decision to the Iowa Supreme Court where, in recent court filings, they quote Iowa’s state motto, “Our liberties we prize and our rights we will maintain,” and say that is not “just a slogan, but reflects a libertarian spirit rather than state authoritarianism.”

While lawyers for the state argue the issues raised in the case are moot given the current lack of restrictions on businesses in Iowa, the bar owners say “it cannot be seriously disputed both that other pandemics will occur and that the governor of Iowa will be faced with more situations which some will claim constitute public health disasters.”

To support their argument that business closures are unlikely to reoccur, lawyers for the governor and IDPH point out in a brief filed May 22 that “Reynolds rescinded the closure orders for the affected counties in September of 2020, and despite higher case counts during the fall and winter of 2020, such restrictions were not re-imposed.”

As part of the litigation, the bar owners have used Reynolds’ refusal to order Iowans to wear masks against her, arguing that it shows she failed to take less draconian measures before ordering the taverns to close or limit their service.

The plaintiffs include Scott Anderson and Thomas Baldwin, the owners of the Tonic Bar in West Des Moines; Saints Pub & Patio in Waukee; Annie’s Irish Pub in Des Moines; Shotgun Betty’s in West Des Moines; The Irish in West Des Moines; and Wellman’s Pub in West Des Moines.

In his initial court filings, Anderson claimed that due to the governor’s March 17, 2020, proclamation closing bars throughout the state, two of his establishments were shuttered for 59 days. Anderson estimates he lost $600,000 in revenue. Baldwin has estimated that he lost at $1.3 million in revenue due to the governor’s actions prior to August 2020, and that he lost even more as a result of restrictions imposed around Labor Day of 2020.

The two have alleged in court that “there is no public health disaster” in Polk and Dallas counties, as defined by Iowa law. They have also argued the governor had other tools at her disposal in attempting to slow the spread of COVID-19, but didn’t take advantage of them before ordering bars to close.

Specifically, they state that on Aug. 1, more than 300 physicians and advanced practice providers urged Reynolds to require individuals to wear masks in public places. “Notably,” the two state, “the Aug. 27th proclamation does not contain any requirement for the wearing of masks.”

In recent court filings, lawyers for the two bar owners ask the Supreme Court to address the issue of whether Reynolds overstepped her authority when she issued her disaster proclamations. “According to Gov. Reynolds, a ‘public health disaster emergency’ existed in Iowa for almost a year,” they say, asking the court to weigh in on specific questions, such as whether the COVID-19 pandemic is actually a “disaster” as defined by Iowa law.

They also take issue with the fact that the governor’s proclamation targeted some businesses, but not others, noting that “COVID-19, like other communicable diseases, does not care about our invisible county lines, or whether we are in a bar, restaurant, or other establishment. There is no legal basis for providing additional restrictions on only a portion of the area affected by a public health disaster emergency.”

In responding to the lawsuit, the state has filed an affidavit by Dr. Caitlin Pedati, the state epidemiologist and medical director. In her sworn statement, Pedati acknowledged that on Aug. 27, the governor ordered bars in six counties to close to the general public.

“I had advised the governor to take this action,” Pedati said in her affidavit. “Bars are higher-risk environments for COVID-19 transmission as compared to restaurants due to challenges in implementing social distancing in establishments where people gather primarily to socialize. The loud environment in many bars can lead to people huddling more closely and talking more loudly, which can increase transmission of COVID-19. Alcohol also lowers inhibitions which can make patrons less likely to follow public health recommendations such as social distancing and wearing masks.”

In briefs filed with the Iowa Supreme Court, lawyers for the governor and IDPH say “COVID-19 has posed a serious danger to the health and lives of Iowans,” but add that on Sept. 15, 2020, Reynolds issued a proclamation lifting the limitations on bars that gave rise to the lawsuit.

Such a situation is unlikely to reoccur, they say. “While the COVID-19 pandemic is certainly not over, states are increasingly imposing fewer restrictions, not more, particularly as increasing percentages of the population become vaccinated. And this is certainly true in Iowa where Gov. Reynolds has rescinded all public health restrictions on businesses,” lawyers for the governor and IDPH state in their final brief to the court on May 22.

In dismissing the case at the district court level, Polk County District Court Judge William P. Kelly ruled that while the bar owners felt the governor’s actions “demonstrated state authoritarianism,” the proclamations did not violate Iowa law or the Iowa Constitution.

“Viewing the facts in the light most favorable to plaintiffs,” Kelly ruled, “they cannot legally claim that there are not sufficient facts to show that COVID-19 was not a public health disaster as defined under Iowa law on August 27th.”

In his decision, Kelly cited federal court rulings that indicate states facing a serious epidemic can implement emergency measures that curtail constitutional rights so long as those measures have a “real or substantial relation” to the public health crisis.

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