Justice Prevails Again: Bailey Glasser Secures Another Dismissal on Behalf of Governor and WV Department of Health and Human Resources


At an injunction hearing on October 6, representing West Virginia Gov. Jim Justice and the West Virginia Department of Health and Human Resources (WVDHHR), Bailey Glasser secured a dismissal of a George Washington High School quarterback’s lawsuit challenging the state’s restrictions of extracurricular activities aimed at preventing the spread of Covid-19.

The lawsuit complained that the Governor’s emergency order focused on preventing the spread of Covid-19 – which closes schools when the incidence of Covid-19 exceeds certain levels and requires students attending classes to wear masks and social distance, among other mitigation measures - is discriminatory as it pertains to extracurricular activities including high school football and violates the West Virginia Constitution. The petitioner claimed that children don’t have to be taking in-person classes for extracurricular activities to continue. Furthermore, the complaint goes on to argue that school age children are unfairly facing consequences from the Covid-19 pandemic, since most older citizens are not restricted in their daily activities and are not complying with the Governor’s mandatory mask order.

Gov. Justice and the WVDHHR have established a color-coded map tracking the spread of Covid-19 within the state, which is used by the State’s Board of Education to determine which counties’ schools can open and remain open for in-person instruction. Kanawha County, home to George Washington High School, has had a relatively high rate of infection, and in-person schooling and all extracurricular activities had been shuttered since September 8 (although they were reopened the week after the hearing). 

Bailey Glasser partner Benjamin Bailey argued that the Governor’s emergency orders were a proper exercise of his emergency powers, and that the admittedly-talented quarterback could not meet the standards for extraordinary, injunctive relief. He also noted that multiple complaints are now pending, filed by plaintiffs seeking to overturn the Governor’s emergency orders or obtain exceptions from them.  Some of those complaints seek more leniency and others more restrictions.  Mr. Bailey pointed out that any judicial ruling overturning one of the Governor’s Executive Orders would disrupt the state’s comprehensive, balanced and detailed efforts to stop the spread of Covid-19 without shutting down all economic and social activity.

At the end of the morning-long hearing, Kanawha County Circuit Judge Joanna Tabit denied the petitioner’s motion and ruled that there wasn’t sufficient evidence to show irreparable harm to the high school quarterback.

Bailey Glasser attorney Benjamin Hogan also played a critical role in the case by participating in all the strategy and writing of the briefs before the hearing, and handling part of the witness questioning during the hearing.  The WV Board of Education, also a defendant in the case, was ably represented at the hearing by Senior Deputy Attorney General Kelli Talbott.

Bailey Glasser previously represented the Governor and WVDHHR in another matter in Kanawha County Circuit Court, challenging the state’s restrictions of in-person schooling, which also resulted in a dismissal and denial of an injunction.  Bailey Glasser will be handling several more similar cases, in state and federal courts, seeking relief from or changes to the State’s overall response to the Covid-19 pandemic.

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