WENATCHEE — A judge has denied a temporary restraining order that would have lifted Gov. Jay Inslee’s COVID-19 state of emergency.
Chelan County Superior Court Judge Kristin Ferrera on Wednesday ruled the plaintiffs “haven’t established a clear legal or equitable right ... for the temporary restraining order.”
The lawsuit was filed by a group of Chelan and Douglas counties residents who sought a temporary restraining order that would have, in effect, lifted Inslee’s pandemic restrictions.
Ferrera said that to establish grounds for a temporary restraining order, the plaintiffs must establish a clear and equitable legal right, a well-grounded fear of immediate invasion of that right, and that the act emergency proclamation and subsequent restrictions have injured or will injure the plaintiffs.
In reference to an influenza pandemic preparedness plan often cited by attorney for the plaintiffs, Joel Ard, Ferrera said the plan’s statute “does not change the fact that the court has to make a decision or has to be able to determine that the governor abused his discretion in failing to terminate the state of emergency as to Chelan and Douglas county.”
She said the plaintiffs likely met the standard of having a well-grounded fear of invasion of that right, but that grounds for injury were not met because their complaints were specific to conditions during Phase 1 of Inslee’s reopening plan, not the present Phase 1.5.
“A temporary restraining order is an extraordinary remedy … and the entitlement has to be clear,” Ferrera said. “And this is a doubtful case, given the reasons I’ve just said. So, I can’t issue an injunction at this time.”
The current lawsuit in Chelan County began as separate lawsuits, one filed in Chelan County and the other in Douglas County. With the Chelan-Douglas Health District overseeing both counties, the cases were combined in Chelan County.
The plaintiffs, led by Wenatchee City Councilman José Cuevas, sued the governor May 22 to end his state of emergency order and allow officials in Chelan and Douglas counties to lead the local pandemic response and reopening of the economy.
Forty-six people are plaintiffs in the lawsuit and include elected officials, business owners and residents hurt by the COVID-19 restrictions.
Inslee’s attorneys previously motioned for the case to be heard in Thurston County, where the proclamation was issued, but Ferrera ruled June 3 the case should remain in Chelan County because the harms alleged in the lawsuit are particular to the area.
Chelan and Douglas counties have had a combined 501 confirmed positive cases of COVID-19 with nine deaths, according to the health district.
Ard argued that the state of emergency — defined as the potential for COVID-19 patients to overwhelm the hospital systems — no longer exists, and that state law regarding states of emergency requires the governor to end the proclamation once there is no longer an emergency. Authority over COVID-19 restrictions should be held by local health districts, he said.
He said his clients have presented a question before the court: What is the scope of the governor’s powers to maintain that declaration of emergency after order has been restored?
“We think the statute says he has no authority to continue doing that and that the county health boards, whether they want to, prefer to or not — that’s not the method prescribing state law,” Ard said.
The lawyer for the governor’s office, Zachary Pekelis Jones, cited a state Supreme Court ruling regarding a state of emergency that was issued in advance of the eruption of Mt. St. Helens in 1980 and that continued long after the explosion.
The Supreme Court ruled that the state of emergency statute does not define when order has been restored and that the governor can end the proclamation at his discretion.
“So there’s no difference, for legal purposes, under the governor’s emergency powers as to the discretion afforded him in terms of when an emergency should be declared or when that emergency should be deemed to have subsided,” Jones said.
In her decision, Ferrera said she can’t say whether there’s a state of emergency or if order has been restored.
“The court can’t determine that,” Ferrera said. “The court can determine whether there’s an abuse of discretion as to that.”
If the lawsuit complained that Inlsee misused his discretion, the plaintiff’s might have had a stronger case, she said.
“Before the court today is not that issue of abuse of discretion,” Ferrera said. “It certainly could be brought and possibly could be brought in this case.”
Ard also argued that the state has an influenza pandemic preparedness plan that defers to local jurisdictions to carry out necessary measures. Although COVID-19 is a coronavirus and not an influenza strain, Ard said the plan should apply because the two illnesses carry similar symptoms.
Ferrera, who tested positive for the coronavirus last month, cited a declaration filed by Dr. Kathy Lofty, the Chief Health Officer and Chief Science Officer for the state Department of Health, which described COVID-19 as sometimes asymptomatic and with a longer incubation time than the flu.
Later in her ruling, she said, “It would be a huge stretch to say that this is supposed to be the plan that is in place if we’re in the middle of a pandemic, regardless of whether it’s influenza or not. It’s a preparedness statute.”
Jones also noted that the health district issued a state of emergency in March and has yet to rescind the order.
The health district was previously asked to weigh in on the case and on Tuesday Jill Thompson, chair of the Chelan-Douglas Health District Board of Health, filed a declaration in superior court attesting to the health district’s ability to handle the pandemic at a local level.
“Regardless of the political undertones surrounding the COVID-19 pandemic, the Chelan Douglas Health District as an independent entity, its Board, and staff are prepared to handle the local COVID-19 pandemic response,” the declaration said.
The declaration does not elaborate on specific “political undertones,” though seven sitting local elected official and a former state representative have been tied to the lawsuit.
They include Wenatchee City Council members Cuevas, Travis Hornsby and Linda Herald, and retired District 12 representative Cary Condotta. Douglas County commissioners Dan Sutton, Marc Straub and Kyle Steinburg, as well as Wenatchee Councilwoman Ruth Esparza, were plaintiffs before the two cases merged. All but Steinburg are members of the health board.