The New York Times. April 04, 2020

(Brent) #1

Tracking an OutbreakEconomic Toll

Blueberry Hill Public Golf
Course & Lounge became a com-
munity institution almost the day
it opened in western Pennsylva-
nia in 1961, with one generation of
players succeeding the next on
the wooded, undulating course
bordering the Allegheny National
It had its share of misfortune —
last spring a tornado roared
through its 400 acres, leaving
$100,000 in damages across its 18
holes. With spring now budding
early, Jim Roth, the general man-
ager, anticipated a boom year
even as coronavirus fears escalat-
ed — people still needed exercise,
didn’t they?
“I thought I had a little bright
light starting to shine, then some-
body turned the light bulb off,” Mr.
Roth said.
That somebody, as far as he was
concerned, was Gov. Tom Wolf of
Pennsylvania. On March 19, Mr.
Wolf introduced an initiative to
categorize businesses as “life-sus-
taining” or not, shuttering golf
courses among the latter.
So Mr. Roth sued, joining a law-
yer, a realtor, a logger, a politician
and a laundry owner in demand-
ing that the governor not hold ab-
solute power to open and shut seg-
ments of the Pennsylvania econ-
omy like a spigot.
“I do not understand why Mr.
Wolf is able to deem this business
life-sustaining and this one not,”
Mr. Roth said. “I think the gover-
nor might have overstepped his
It is a growing refrain across the
United States as more governors
invoke their “police powers” to
take extraordinary measures to
protect public health. Some Amer-
icans, many hoping to protect
their livelihoods and others suspi-
cious of such sweeping powers,
are turning to the courts.
“What you will see are massive
increases in the number of people
who have problems that could
benefit from some kind of legal as-
sistance,” said Rebecca Sandefur,
a sociologist at the American Bar
Because of sparse online
records, it is not clear how many
ordinary Americans have turned
to state courts for redress, legal
experts said, but there has been a
wave of lawsuits as state govern-
ments extend the timeline for peo-
ple to stay home and to shutter
their businesses.
Various political leaders and
civic organizations have criticized
the measures as excessive and
bound to hurt the American econ-
omy, a line abandoned by Presi-
dent Trump but still maintained
by some allies.
“We have to focus on keeping
people employed,” Devin Nunes,

the California congressman and
top Republican on the House In-
telligence Committee, told Fox
News this week. “I will tell you
this, if we don’t start to get people
back to work in this country over
the next week to two weeks, I
don’t believe that we can wait until
the end of April.”
Some of those suing their state
governments seek redress for
specific, local grievances, as with
the golf course or in a similar suit
in Pennsylvania being pursued by
a company that says it is the coun-
try’s oldest manufacturer of or-
chestra-quality bells and chimes.
Those lawsuits and one in Arizona
are rooted in the Fifth Amend-
ment, which requires due process
and guarantees compensation for
property seized by the govern-
Other constitutional amend-
ments have been invoked in sev-
eral lawsuits in recent weeks at-
tempting to force open gun stores,
or to argue that measures to curb
the virus should not outweigh
rights like freedom of assembly
and religion.
“Those may be serious, but they
may also be part of an attempt to
make an argument in the press
about overreach,” said Tom
Burke, a political-science profes-
sor at Wellesley College who stud-
ies the politics of litigation.
History dating back to the time
of 15th-century plagues shows

that lawsuits typically plummet
during pandemics, Mr. Burke
said, for the obvious reason that
courts are closed. But legal ex-
perts anticipate a tidal wave of
court activity afterward — espe-
cially in fields like insurance and
debt collection — because of the
economic dislocation caused by
the pandemic.
A smattering of those suits has
already been filed. Thomas Keller,
the chef behind upscale restau-
rants like Per Se in New York and
the French Laundry in California’s
Napa Valley, sued the Hartford
Fire Insurance Co., asking a state
court in California to confirm that
the insurer must cover losses
caused by the government-or-
dered closures.
In Oklahoma, the Chickasaw
and Choctaw nations also went to
state court to demand that their
insurers cover losses sustained by
their casinos.
Suits meant to preserve long-
established rights often do not
prove popular in times like this,
with the public endorsing the need
to make health a priority.
Dan Hynes, a lawyer and local
politician in New Hampshire, was
taken aback by the reaction when
he sued Gov. Chris Sununu in state
court, claiming that even the ini-
tial restrictions limiting the size of
public gatherings like church
services were an infringement on
basic rights including freedom of

religion and freedom of assembly.
Negative comments flooded
into his social media accounts and
those of the three other plaintiffs.
“Knock it off,” wrote one woman
on Facebook. “You can harm oth-
ers with your sheer ignorance. Or,
you can be a good member of a
community and society.”
Merrimack Superior Court
threw the suit out.
In Pennsylvania, Marc A.
Scaringi, the lawyer for the golf
course and others, said that the
state’s Disease Prevention and
Control Law, last amended in 1959,
targets infected individuals. It
does not refer to pandemics, nor
grant the governor the extensive
power he is claiming under “other
catastrophes,” Mr. Scaringi said,
especially without due process.
Finally, the list of banned busi-
nesses seemed to change at ran-
dom, with even some of his origi-
nal plaintiffs removed, he argued
in court papers.
At the golf course, Mr. Roth said
he recognized that the measures
were for the public good, but exer-
cise was beneficial, too, and he
was ready to modify the rules. He
could limit golf carts to one per
person, or even force players to
walk, for example, and bar touch-
ing the flags.
Critics accused Governor Wolf,
a Democrat, of playing favorites
with the “life-sustaining” list. The
governor’s former family busi-

ness, which makes kitchen cab-
inetry, was initially deemed “life-
sustaining,” the complaint said,
then scratched off the list. There
was also some public grumbling
that the Dan Smith Candy Com-
pany, a chain in the family of State
Senator Joe Scarnati, a prominent
Republican politician, was operat-
“The Wolf administration’s
highest priority is protecting pub-
lic health and safety,” the gover-
nor said in a statement when
asked about the lawsuits. By Fri-
day afternoon, Pennsylvania had
more than 8,000 coronavirus
cases and 100 deaths.
The statement denied that the
governor was directly involved in
the choice of which companies re-
ceived waivers. “Those request-
ing an exemption represent a frac-
tion of the Pennsylvania business
community and we are working to
ensure that those exemptions are
properly processed and align with
our most current guidance,” the
statement said.
Confectionary businesses were
not closed, the statement noted,
while the Dan Smith Candy Com-
pany said on its Facebook page
that it was life-sustaining because
it also sold spaghetti sauces,
pasta, oil and other goods.
“When your neighbor’s house is
burning down, though a burden,
the law requires that you allow the
fire engine to block your driveway

for the protection of the entire
neighborhood,” the state said in a
brief filed by Attorney General
Josh Shapiro. “A pandemic is
burning across the world. The
only effective tool we have to fight
that fire is social distancing.”
Across the United States, clos-
ing gun shops provoked a series of
lawsuits arguing that the measure
violated the Second Amendment
right to bear arms. Critics filed
lawsuits in New York, New Jersey,
Pennsylvania, Georgia, Texas and
California, where the National Ri-
fle Association was one plaintiff.
David Jensen, the lawyer in a
New Jersey case, said his clients
were not necessarily arguing that
gun shops be allowed to open, but
that a route be found to allow
some gun sales. “You cannot close
off the ability of anyone to acquire
a firearm,” he said.
Representatives for Everytown
for Gun Safety and Moms De-
mand Action, allied organizations
that lobby for stricter gun laws,
countered that nothing in the Sec-
ond Amendment suggested that
gun stores enjoy special treat-
ment during a public health crisis.
“Governors should not be
pressed into declaring gun stores
essential,” said John Feinblatt, the
president of Everytown for Gun
Defending First Amendment
rights led to lawsuits in various
states including New York, Maine,
Georgia, Texas and New Mexico.
In New Mexico, the president of
the Albuquerque Tea Party, Le-
land Taylor, filed a federal lawsuit
claiming that the emergency or-
ders issued by the governor, Mi-
chelle Lujan Grisham, violated
the rights to worship and free as-
sembly, among others.
Mr. Taylor initially claimed that
the virus was not serious enough
to warrant such emergency or-
ders, calling it “not as egregious
an infection as reported” and one
with a “100 percent” cure rate by
using an inexpensive antimalari-
al. That echoed statements from
Mr. Trump about the use of anti-
malarial drugs in combination
with antibiotics that his own ex-
perts later denied.
“This is a frivolous lawsuit
based on extremely dangerous
misinformation that, if widely dis-
seminated, will do nothing but
worsen this crisis in New Mexico
and lead to more illness and
death,” Nora Meyers Sackett, the
spokeswoman for the governor,
said in an email.
With courts shuttered, plaintiffs
usually hope that emergency in-
junctions or similar measures will
win them a quick hearing on the
phone. It is hard to prevail in any
case, however, over government
measures designed to protect
public health, legal experts said.
“The general pattern in the mid-
dle of a crisis is that courts are
very deferential,” said Mr. Burke,
the political scientist.


Business Owners Sue to Reopen, Citing Breach of Constitutional Rights


Jim Roth, the general manager of a golf course, expected a boom year even as virus fears rose, figuring people still needed exercise.


Susan C. Beachy contributed re-

movie theaters.
“I can’t lock the state down,”
said Gov. Kim Reynolds of Iowa,
which has recorded more than 600
confirmed cases and at least 11
deaths. “People also have to be re-
sponsible for themselves.”
For many conservative gover-
nors who believe strongly in small
government and personal respon-
sibility, the prospect of mandatory
stay-at-home orders is anathema
and they rejected what they called
a catchall approach that could
wreck their states’ economies.
Though governors issuing the or-
ders elsewhere have spanned the
political spectrum, with some Re-
publican governors emerging as
early and strong advocates, the
remaining holdout states are all
Gov. Doug Burgum of North Da-
kota said he was appealing to resi-
dents “who love liberty and free-
dom” to respect social-distancing
rules. “It’s important that we ex-
ercise individual responsibility,”
he said at a news conference. “By
following these guidelines, we’re
literally saving lives.”
Some holdout governors have
issued different levels of restric-
tions within their states. Iowa has
adopted a point system to deter-
mine whether particular parts of
the state should be ordered to
shelter in place. In Nebraska,
restaurants in more rural areas
were still open for customers to
eat in — as long as there were
fewer than 10 dining at a time.
Other states with partial re-
strictions in cities or counties, but

no statewide orders, included Ok-
lahoma, South Carolina, Utah and
Gov. Greg Abbott of Texas had
previously toughened social-dis-
tancing guidelines, but stopped
short of calling the move a state-
wide stay-at-home order; on Fri-
day, a spokesman clarified that
Texas was indeed under a state-
wide mandate. Also on Friday, the
governors of Missouri and Ala-
bama, who had previously re-
sisted such a move, also issued
stay-at-home orders.
“Some will naturally say, why
did you wait so long?” Gov. Kay
Ivey of Alabama said. “Others will
say, why now?” She said she had
sought balanced measures that
“would look out for people’s safety
while keeping government from
choking the life out of business
and commerce.”
In many of the holdout states —
largely rural, with far fewer cases
than the hardest hit regions like
New York City — residents said
they were already social distanc-
ing, even without formal orders.
Still, some feared the lack of
clear instructions could leave dan-
gerous gaps.
“If we don’t get some clear di-
rective from our governor, people
will begin to rationalize reasons
for getting together: ‘It’s not that
bad. I see them anyway at the
store,’ ” said Nancy DeBoer, a
nurse in Brookings, S.D., home to
South Dakota State University.
“It’s our governor’s responsibility
to show some leadership.”
Gov. Asa Hutchinson of Arkan-
sas said in an interview that the
typical stay-at-home order was a
misleading “illusion” because it
includes so many exemptions al-
lowing people to go out in public,
such as for groceries or exercise.
He said Arkansas had taken “very

aggressive measures,” and said
ordering people to stay at home
would simply leave thousands
“If I signed it today, more than
700,000 people would get up and
go to work tomorrow,” he said,
adding another 100,000 would be
suddenly unemployed.
The different approaches have
created a rift between states, an-
gering other governors and resi-
dents living under stricter orders
just across state lines. A Tennes-
see congressman wrote the gover-
nor of Arkansas asking for a stay-
at-home order so that the virus did
not spread next door.
“What are you waiting for?”
Gov. Gavin Newsom of California,
who issued the first statewide or-
der last month, told CNN when
asked about governors who ha-
ven’t followed suit. “What more
evidence do you need? If you
think it’s not going to happen to
you, there are many proof points
all across this country.”

People demanding tougher
measures are barraging elected
officials with phone calls and so-
cial-media messages.
A doctor in Iowa and a regis-
tered nurse in South Dakota have
started online petitions. In Ne-
braska, the Facebook page of Gov.
Pete Ricketts is filled with com-
menters second-guessing his de-
cision. “PLEASE issue a stay at
home order!” one person wrote.
“Very soon it is going to be too
“We’ve got people begging us,”
said Rod Sullivan, the chair of the
board of supervisors in Johnson
County, Iowa, who said he has got-
ten calls at home and on his cell-
phone asking why he had not done
more to keep people at home. Un-
der state law, he said, such an or-
der must come from the governor.
“It’s hard to just tell them
there’s nothing we can do,” he
Many residents said they were
taking precautions and social dis-

tancing anyway, organizing virtu-
al Bingo games, taking children
on “bear hunts” to see teddy bears
positioned outside homes or in
windows in the neighborhood and
organizing car cruise nights,
where residents pile in their cars
and drive the local strip, waving at
each other from a safe distance.
“You end up with some self-gov-
ernance,” said Michael Stepp, the
owner of a tap room and coffee
spot in O’Neill, Neb., who said he
didn’t think a statewide order was
needed because most residents,
like himself, are largely staying
home anyway.
“It’s more a result of the general
outlook and demeanor of Midwest
people,” he said. “Everybody
wants to be helpful.”
For some, further restrictions
seemed both daunting and unnec-
essary. Connie Wright is already
working out of her home in Altoo-
na, Iowa, coordinating insurance
payments for a hospital system.
Her gym is closed, so she can’t get

out of the house to take Zumba
classes and chat with friends she
has made there.
The only thing keeping her sane
these days, it seems, is walking on
the bike trail behind her house and
seeing her grandchildren, who
still come over to dance to Disney
music and songs from the 1960s.
She fears even those small com-
forts could go away if the gover-
nor gives in to what Ms. Wright
sees as pressure from critics to is-
sue a stay-at-home order.
“It would be depressing,” said
Ms. Wright, 51, who said she ap-
preciated that the governor was
showing faith in residents to do
the right thing. “You might as well
slap an ankle bracelet on me.”
A stretch of Interstate 40, which
runs from downtown Memphis
across the Mississippi River into
Arkansas, has come to illustrate
the patchwork of rules restricting
movement in the United States.
On the Arkansas side of the river,
where the governor has so far re-
sisted a statewide mandate, some
“nonessential” businesses remain
open. On the Tennessee side, a
stay-at-home order went into ef-
fect this week, closing stores.
Now the owner of a chain of
clothing stores called Deep South
located on both sides of the Mis-
sissippi, is operating under two
different sets of rules. The compa-
ny’s owner, Munther Awad, a 47-
year-old immigrant from the Mid-
dle East, said he owns two stores
in Arkansas, which are open, one
in West Memphis and another in
Little Rock. And he owns a third
store in Memphis, which is now
closed because of a local mandate
last week.
“I feel like if you would have just
went ahead and put the whole na-
tion at the same time on a lock-
down, we could have got some
control over it,” said Lavanda
Mayfield, 33, who was waiting to
serve takeout to customers at the
Iron Skillet restaurant at a truck
stop near I-40 in West Memphis
on Friday.
“But now it’s just out of control,”
she said, “because you did state-


A church in Des Moines. Iowa is one of a handful of states that have not issued stay-at-home orders.


Life Goes On in Few States

Resisting Lockdown Calls

From Page A

Reporting was contributed by Au-
dra D.S. Burch, Daniel Connolly,
Barbara Hall, John Peragine, Rick
Rojas and Dionne Searcey.

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