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There’s a lot of COVID litigation out there

Texas Lawyer surveys the landscape.

The COVID-19 pandemic has created a growing subset of new business litigation in Texas: companies suing the government over shutdown orders or definitions of essential versus nonessential businesses.

One of the latest examples to make headlines was a large group of bar owners who sued Texas Gov. Greg Abbott over his order that closed bars again because of the rising infection rate in the Lone Star State.

But Texas Lawyer’s research revealed that the bar litigation was at least the 15th similar lawsuit filed in the state since the onset of the pandemic in early March. It’s likely that there are even more cases filed in small or mid-sized cities in Texas.

One of the most interesting legal claims raised by this type of litigation is whether the governor has exceeded his authority under the Texas Disaster Act to suspend laws in the state, said Brad Nitschke, partner in Jackson Walker in Dallas, who has been tracking COVID-19 litigation.

“The executive is given a large toolbox to respond to emergency situations. To some extent, at least, it sort of has to be that way,” Nitschke said. “I think we are more accustomed in Texas to what that looks like for a hurricane or tornado, or a catastrophic drought.”

Using the same statute to respond to a pandemic is sort of like trying to put a square peg into a round hole, he added.

“It’s clear the governor has significant authority to act in the case of a disaster,” Nitschke said. “I think the unique circumstance of a pandemic like this one is going to give courts a chance to figure out what the outer limits of that authority may be.”

[…]

It will be tough for plaintiffs to win these sorts of cases, said Christy Drake-Adams, assistant general counsel of the Texas City Attorneys Association and the Texas Municipal League.

Drake-Adams noted that the league’s insurance risk pool has seen eight similar lawsuits against small and mid-sized Texas cities, which generally argue about the definition of essential versus nonessential businesses.

“They think they should have been allowed to continue operating, because they were an essential business,” explained Drake-Adams.

She said that government defendants who are fighting these types of lawsuits have a strong defense: That governmental immunity protects them from the claims.

“To the extent that plaintiffs are throwing in constitutional claims, I would say it’s pretty clear that the government has broad authority to act to protect the public health and to regulate in times of emergency, and that authority is expressly provided in law. It’s not clear that anyone’s constitutional rights have been violated as a result of those regulations,” Drake-Adams said.

There was a quote in there from Jared Woodfill about why the plaintiffs are right, but 1) screw that guy, and 2) we’ve heard from him plenty in the stories about each individual lawsuit he’s filed. This was the first time I’d seen an analysis from someone not connected to any of the lawsuits, though since cities or counties are the defendants in some of them, the perspective given here isn’t fully objective, either. Texas Lawyer reviewed the Hunton Andrews Kurth COVID-19 Complaint Tracker for the basis of this story; you can see media coverage of that tracker here. About half of the lawsuits involve the state (two), a state agency (one), or local governments (five), the rest are between private entities. I feel like it will be multiple years before there’s little to no litigation of interest of this nature to continue tracking.

Ellis and Crownover on the smoking ban

State Sen. Rodney Ellis and State Rep. Myra Crownover have an op-ed arguing in favor of the statewide smoking ban legislation they’re sponsoring. I don’t know how persuasive their case may be to anyone who isn’t already in favor of it – I get the impression this is more a matter of faith these days than anything else – but there you have it in case you were curious. What I’m curious about is how much actual effect this legislation will have. Maybe it’s just my urban elitism speaking, but it strikes me that with the extension of Houston’s ban, I can’t remember the last time I encountered a lit cigarette inside a public building. Maybe if I visited a bar in unincorporated Harris County I would, but as far as my normal habits go, it’s just not an issue for me.

So help me out here: Where, if at all, do you encounter smokers? I’m only talking about places that would be affected by this proposal, which includes bars, restaurants and all indoor public places across Texas, including offices, convention centers and bus stations. It would also ban smoking in the bleachers of outdoor sporting or music events, and anywhere within 15 feet of a doorway to a public building. Putting it that way, the latter is probably where I’m most likely to run into smokers, though not at my own office building – they’re restricted to a rooftop area near the cafeteria, which I can easily avoid. What about you? Leave a comment and let me know.

One thing from the op-ed:

As Lance Armstrong recently stated, in 10 years we will look back at this debate and wonder, “What were we debating, and why did it take Texas so long?”

I have to say I agree with this. When I came to Houston in 1988, smoke was everywhere – restaurants, hotel lobbies, office buildings (at my first job, my smoking coworkers lit up in the building’s atrium; the place had a permanent haze), you name it. Now, it’s all gone, and it’s totally normal this way. I fully expect that this will be one of those stories I’ll some day tell my kids about how things used to be that will make them roll their eyes in disbelief.