SH3 Health Consulting, LLC v. Page

459 F.Supp.3d 1212

SH3 HEALTH CONSULTING, LLC, et al., Plaintiff(s),

v.St. Louis County Executive Dr. Sam PAGE, et al., Defendant(s).

Case No. 4:20-cv-00605 SRC

United States District Court, E.D. Missouri, Eastern Division.

Signed May 8, 2020

W. Bevis Schock, Schock Law, St. Louis, MO, for Plaintiff(s).

Neal F. Perryman, Jerina Dominique Phillips, Michael L. Jente, Lewis Rice LLC, St. Louis, MO, Steven J. Capizzi, St. Louis County Counselors Office, Clayton, MO, for Defendant(s).

Memorandum and Order

STEPHEN R. CLARK, UNITED STATES DISTRICT JUDGE

Plaintiffs—two businesses that have effectively been shut down by government "stay at home" orders entered to stanch the spread of COVID-19—understandably seek to reopen. Plaintiffs claim that St. Louis City and St. Louis County lack authority under Missouri law to enter the Orders, and that the Orders violate their rights under the United States Constitution; they seek a temporary restraining order [2] to prevent Defendants from enforcing the Orders. The Court's limited role of judicial review is not to assess the wisdom of the Orders, but to determine whether the Orders violate the law. Regardless of whether the Orders violate state law, the Court finds that they do not violate the Constitution because they have a real and substantial relation to the goal of stemming the tide of the public-health pandemic, and they are not "beyond all question, a plain, palpable invasion of rights secured by the fundamental law." Jacobson v. Massachusetts , 197 U.S. 11, 31, 25 S.Ct. 358, 49 L.Ed. 643 (1905). The Court denies the motion for TRO.

I. Background

A. The City and the County

To understand the myriad state-law issues at the heart of this case, one needs to first understand the unique legal structure of St. Louis City and St. Louis County, Missouri. At one time, the St. Louis metropolitan area operated as one county. In 1876, the City of St. Louis split from the County, becoming an independent city, not part of any county. City Government Structure , https://www.stlouis-mo.gov/government/about/city-government-structure.cfm (last visited May 7, 2020). The City and County operate under different charters. See St. Louis Charter of 1914; St. Louis County Charter of 1979.

The Missouri Constitution confers a unique dual status on the City, recognizing it as both a city and a county, while also permitting it to operate under a city (rather than county) charter; the Constitution also grants the City the rights of a county. Mo. Const. art. VI, § 31. The City and the County are geographically separate, and are separate political subdivisions of the state: the City has a Mayor, and the County has a County Executive, the City has a Circuit Court and the County has a Circuit Court, the City has a Circuit (prosecuting) Attorney and the County has a County Prosecuting Attorney, and as is relevant in this case, the City has a Department of Health and the County has a Department of Public Health.

Defendants all are elected or appointed officials, some of whom have various qualifications in the realm of medicine and public health. Lyda Krewson is the Mayor of the City, an elective office. Frederick Echols is a medical doctor and the Director of Health/Hospitals Commissioner of the City. The City's Charter provides that the "director of health and hospitals shall be a regularly licensed practitioner of medicine and surgery and a graduate of a recognized school of medicine or shall have completed graduate work in a recognized school of public health to the level of a Master's Degree in Public Health or have been certified by the American Board of Preventive Medicine and Public Health. The director also shall have had at least three years' experience in the practice of medicine and at least three years' experience in public health work ..." City Charter art. XIII, § 14C(a) (italics in original).

Dr. Sam Page is the County Executive, an elective office, and a medical doctor. Dr. Emily Doucette is the Acting Director, Chief Medical Officer, Department of Public Health of St. Louis County. The County's Charter provides that the Director "shall be either a licensed physician or shall be the holder of at least a master's degree in public health or hospital administration ... If a physician, the director shall be board certified or board eligible in preventive medicine or a related specialty and shall have had at least five (5) years’ executive experience in the field of public or community health." Doc. 19-4, pg. 4.¹

B. The COVID-19 health crisis

St. Louis City and County, like the rest of the country, are in the midst of a public health crisis caused by the global COVID-19 pandemic. As of May 8, 2020, the United States has a total of 1,219,066 known cases, and 73,297 known deaths from the virus.² Missouri has a total of 9,489 cases and 449 deaths.³ St. Louis City has 1,450 cases and 83 deaths.⁴ St. Louis County has 3,792 cases and 244 deaths.⁵ The City and County account for over 55% of the cases and over 70% of the total deaths in Missouri. On March 13, 2020, the President of the United States declared the COVID-19 pandemic a national emergency.⁶ On the same date, the Missouri Governor declared a state emergency.⁷ Countless state and local governments across the country have issued varying forms of "stay at home" orders. See e.g., In re Rutledge , 956 F.3d 1018, 1023 (8th Cir. 2020) ; In re Abbott , 954 F.3d 772, 779-80, 787 (5th Cir. 2020)

The State, City, and County likewise entered "stay at home" orders. On April 3 and April 16, 2020, Dr. Randall Williams, Director of the Department of Health and Senior Services for the state of Missouri, issued orders directing, among others, all businesses in the entire state to stop engaging in certain activities. Docs. 1-10, 1-11. On April 20, 2020, Dr. Echols and Dr. Doucette issued separate orders that differ in many respects but similarly require all businesses, other than essential businesses, to cease virtually all activities. The City and County Orders allow non-essential businesses to continue minimum basic operations, continue business activities from their own residences, and provide pickup and delivery services. Docs. 1-7, 1-9. Mayor Krewson and Dr. Page adopted the doctors’ positions and confirmed that pursuant to Mayor Krewson and Dr. Page's authorities, non-essential businesses in the City and County must remain closed indefinitely. Docs. 1, ¶ 28; 1-8. Both Dr. Echols and Dr. Doucette had issued prior similar orders. Dr. Williams's state-wide orders expired at 11:59 p.m. on May 3, 2020, while Dr. Echols and Dr. Doucette's orders remain in place until at least May 18, 2020, as acknowledged by Plaintiffs’ counsel during the hearing. Doc. 1-11.

C. The plaintiffs

Plaintiff Elder's Antiques, LLC, whose sole member is Cherri Elder, owns an antique store in the City that has been shut down by the City Order. Doc. 1-6. Ms. Elder wants to open her store; she wants to gather with her staff and customers to discuss antiques and their artistic merit. Doc. 1-6. Ms. Elder has continued to communicate with her customers via the internet. The closure of Ms. Elder's store has caused her company to stop generating revenue and has made her "financially strapped." Id. Plaintiff SH3 Health Consulting, LLC, whose sole member is Allan Finnegan, owns a gym in the County that has been shut down by the County Order. Doc. 1-5. Mr. Finnegan states he wants to open his gym; he wants to gather with his staff and customers to exercise, and to talk about the need for exercise and social discourse to improve mental health. Id. Currently, the gym generates no revenue and Mr. Finnegan has become "financially strapped." Id. Consequently, Plaintiffs seek to have the Court declare Dr. Echol's and Dr. Doucette's orders invalid.

The City and County have filed Motions to Dismiss and/or Stay asking the Court to abstain from exercising equitable jurisdiction or, in the alternative, to dismiss the complaint for failure to state a claim. Docs. 15, 17, 25. The City and County argue that the Court should abstain under the Pullman doctrine, recognized in Railroad Commission of Texas v. Pullman Co. , 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941), because of the complex state law issues raised about the authority granted to the State, City, and County – under the Missouri Constitution, the City and County charters, state statutes, and state regulations – to issue orders during times such as these. In this order, the Court only addresses Plaintiffs’ TRO Motion, deferring the abstention and dismissal Motions to a later order.

II. Standard

A Court issues injunctive relief in a lawsuit to preserve the status quo and prevent irreparable harm until the Court has the opportunity to rule on the lawsuit's merits. See Devose v. Herrington , 42 F.3d 470, 471 (8th Cir. 1994). In determining whether to issue a temporary restraining order, the Court must consider four factors: (1) the threat of irreparable harm to the movant; (2) the potential harm to the nonmoving party should an injunction issue; (3) the likelihood of success on the merits; and (4) the public interest. See Dataphase Sys., Inc. v. C.L. Sys., Inc. , 640 F.2d 109, 113 (8th Cir. 1981). The party seeking injunctive relief entirely bears the burden of proving that under these factors, the Court should issue a TRO. See Modern Computer Sys., Inc. v. Modern Banking Sys., Inc. , 871 F.2d 734, 737 (8th Cir. 1989) (en banc); Gelco Corp. v. Coniston Partners , 811 F.2d 414, 418 (8th Cir. 1987). "Courts in the Eighth Circuit apply the same standards to a request for preliminary injunction and temporary restraining order." Brooks v. Roy , 881 F. Supp. 2d 1034, 1049 n.6 (D. Minn. 2012) (citing S.B. McLaughlin & Co. v. Tudor Oaks Condo. Project , 877 F.2d 707, 708 (8th Cir. 1989) ). "An evidentiary hearing is required prior to issuing a[n] [ ] injunction only when a material factual controversy exists." United Healthcare Ins. Co. v. AdvancePCS , 316 F.3d 737,...