ROGERSVILLE — Gov. Bill Lee and Hawkins County Mayor Jim Lee have submitted motions to dismiss a lawsuit filed last month against them claiming their COVID-19 mandates last year were unconstitutional.
Brian Dooley, who resides near Rogersville, filed the lawsuit June 15 in Hawkins County Circuit Court.
Rogersville attorney Jefferson Fairchild is listed as the plaintiff's attorney, and the case will be heard in Circuit Judge Alex Pearson's court. As of Wednesday, no hearing date had been set.
The lawsuit alleges that Gov. Lee lacks the authority to suspend the rights guaranteed by the United States Constitution or the Tennessee Constitution.
On March 22, 2020, Gov. Lee issued an executive order to mitigate the outbreak of COVID-19 based on the spread of the virus in Tennessee and recommendations from President Trump and the CDC. Executive Order 17 prohibited people from participating in social gatherings of 10 or more people and closed or limited the services of restaurants, bars and gyms.
On March 30, 2020, Gov. Lee determined further measures were necessary to limit the community spread of COVID-19. He issued an order extending Executive Order 17, closing businesses that provide close contact personal services and entertainment venues, as well as closing non-essential businesses and urging Tennesseans to stay at home unless engaged in essential activities.
On July 3, 2020, the governor issued Executive Order 54 authorizing county mayors to issue mask mandates. That mandate expired on Sept. 30, 2020.
"The governor does not have the authority"
The lawsuit alleges that Tennessee’s governor lacks the authority to suspend the constitutional rights guaranteed by the Constitution of the United States.
The lawsuit further alleges that "Tennessee’s Governor lacks the authority to suspend constitutional rights guaranteed by The Bill of Rights, which apply to the States through the Due Process Clause of the Fourteenth Amendment.”
"The federal and state constitutions have not been amended to expressly permit the Governor of Tennessee to suspend Petitioner’s federal or state constitutional rights during a declared state of emergency," the lawsuit alleges.
Dooley's lawsuit asks the court to declare that the governor does not have the authority to suspend the constitutional rights guaranteed by the Tennessee Constitution, U.S. Constitution, or by the Bill of Rights, which apply to the States through the Due Process Clause of the Fourteenth Amendment; and declare that Dooley's constitutional rights are and shall forever remain inviolate.
"Even during a state of emergency, Petitioner (Dooley) retains his federal and state constitutional rights," the lawsuit states. "Tennessee Code Annotated 58-2-107(e)(1) only permits the suspension of certain laws (never Constitutional rights) under very narrow circumstances."
The lawsuit further alleges that Tennessee’s governor has no authority to order any of the following outside of a state business or state agency:
1. Work from home whenever possible.
2. Avoid social gatherings of 10 or more people.
3. Avoid eating or drinking at restaurants, bars, and food courts, and instead use drive-thru, pick-up, or delivery options.
4. Avoid discretionary travel and social visits.
5. Avoid discretionary visits to nursing homes, retirement homes, or long-term care facilities.
6. Avoid close contact with people who are sick, and distance oneself from others, especially those who are at high risk of getting sick, including in particular older adults and persons with serious chronic medical conditions.
7. Practice good personal hygiene, including washing hands, especially after touching any frequently used item or surface, avoiding touching the face, and disinfecting frequently used items and surfaces as much as possible.
Gov. Lee's motion to dismiss
On July 27, Gov. Lee filed a motion to dismiss, which was drafted by Deputy Attorney General Janet Kleinfelter
That motion to dismiss claims Dooley can establish no set of facts entitling him to the requested declaratory relief because he has failed to establish the existence of a judiciable case or controversy. Specifically, because Dooley cannot establish standing because certain of Dooley's claims for declaratory relief are barred by sovereign immunity, and because Dooley's claims are otherwise moot, dismissal is appropriate.
Gov. Lee's answer also states that in the event the court decides Dooley has established a justiciable case or controversy, the complaint fails to establish that any of his constitutional claims against Gov. Lee are legally sufficient.
Gov. Lee noted in his response that as of July 15, 2021, there have been 872,934 confirmed cases of COVID-19 in Tennessee, and 12,628 Tennesseans died from COVID-19.
“This serious and rapidly evolving situation required an equally serious and rapid response," Lee's motion states. "Gov. Lee responded by implementing necessary emergency measured to protect and preserve health and lives of Tennessee residents."
The response also cites recent cases, including roller rink owner Perry Allen vs. Gov. Lee in which the plaintiff challenged the governor's authority to close entertainment and recreational facilities due to the COVID-19 pandemic. The trial jury dismissed the complaint for failure to state a claim.
The lawsuit against Mayor Jim Lee
The main complaint Dooley filed in his lawsuit against Hawkins County Mayor Jim Lee was the mask mandate he ordered on July 15, 2020. That mandate ended Sept. 29, 2020.
The lawsuit asks the court to declare that Mayor Lee's mask mandate was based upon an asserted arbitrary power that the mayor has no authority to force Hawkins County residents to wear an article of clothing that impedes the process of respiration, inhaling oxygen and exhaling carbon dioxide.
The lawsuit also asks the court to declare that Mayor Lee has no authority to force Hawkins County residents to wear a cloth or other face covering under the threat of criminal penalties of fines and/or imprisonment to stop the spread of COVID-19 or to mitigate the risk of COVID-19. The suit also alleges that the mayor’s mask mandate in his Executive Orders are unconstitutional and are void.
Mayor Jim Lee's motion to dismiss the lawsuit against him, which was also filed July 27, admits that he signed the mask mandate, although he publicly stated he was informed by the Hawkins County Sheriff's Office that it didn't have the time or manpower to enforce the order.
Mayor Lee further claims in his motion to dismiss that his power to issue the mask mandate order was derived from and delegated by Gov. Lee.