(The Center Square) - A lawsuit filed by an Indiana barbeque restaurant this month challenging the governor’s executive orders is the first of its kind in the state and questions the governor’s authority and what qualifies as an emergency.
“What we’re saying is that there isn’t an emergency right now,” says Mark Rutherford, the Indianapolis attorney representing Yergy’s State Road BBQ in Bluffton.
Rutherford says the state’s “Emergency Disaster Law,” cited by Republican Gov. Eric Holcomb as the one thing giving him the power to issue more than 40 executive orders related to Covid-19, doesn’t define “emergency” and Covid-19 doesn’t qualify – at least not now, nine months in.
Rutherford points to the definition of “emergency” in Black’s Law dictionary.
“It talks about an emergency being a sudden event requiring immediate action…What we’re arguing is this isn’t immediate action anymore. That passed a long time ago,” he says.
Holcomb has issued 50 executive orders since March when he first declared a state health emergency. They’ve included orders shutting down what are deemed “non-essential” businesses, requiring people to wear masks, imposing capacity limits on bars, restaurants and churches and halting elective surgeries.
Yergy’s State Road BBQ in Bluffton, south of Fort Wayne, was shut down in late August by order of the county health department, which cited the governor’s statewide mask mandate.
The restaurant, owned by Matt Yergler and his wife Adia, had been leaving it up to employees to decide whether they wanted to wear face masks or not, and many had chosen not to.
“The mask mandate came and we just decided, you know what, this isn’t about health, this is about compliance, this is about control and fear, and at that point we decided that we’re not complying anymore,” Matt Yergler told Fort Wayne news/talk station 1190 AM on Dec. 22. “We let our customers know that. We think that the individual liberties should be to the individuals whether they want to wear a mask or how they want to protect themselves for their health, and so we put it back on the individual side and we were going to do the same as a small business. And then from there it just went downhill real quick.”
The county health department’s order demanded Yergy’s close immediately, citing the state health law, which allows the state to take action to stop “conditions causative of disease.”
But not wearing a mask does not qualify, Yergy’s says.
“It is irrational, arbitrary and capricious to determine, with or without evidence, that the lack of face coverings worn by healthy Yergy employees is a condition causative of disease when, among other things, Yergy’s customers are not required, by applicable law, ordinance or rule to wear coverings at all times when present in Yergy’s restaurant,” the suit filed in county circuit court says.
The Wells County Health Department’s order also cited Holcomb’s executive orders, including the mask mandate signed by the governor July 24 which says masks must be worn inside businesses and places open to the public, in taxis and ride-sharing vehicles and also outside in public spaces “wherever it is not feasible to maintain six feet of social distancing from another person not in the same household…”
The Yergy’s suit challenges the constitutionality of the mask mandate and all other executive orders issued by the governor in response to the Covid-19 pandemic, saying the orders “do not comply with the requirements of the United States Constitution and the Indiana Constitution…”
The suit focuses on the Indiana Constitution, saying the “spine” of Indiana’s constitutional system “is the limitation on governmental power.”
The suit refers to a 2019 Indiana Supreme Court Opinion, Horner v. Curry, in which the court talked of the importance of the separation of powers and quoted James Madison from Federalist Paper No. 47 (1788): “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed or elective, may justly be pronounced the very definition of tyranny.”
In their opinion in Horner, the state Supreme Court referred to the strict separation of powers in Article 3 of the Indiana Constitution, saying “the only permissible deviation from strictly separate governmental powers arises when the Constitution itself permits it.”
The governor, says Rutherford, should have called a special session of the Indiana General Assembly in the spring or early summer rather than continuing to issue executive orders.
“This requires a well-thought-out plan, and that’s the legislature’s job, and they’re not being allowed to do it,” he says.
The executive orders, he says "can’t be used as the law of the land."
Yergy’s, meanwhile, has been closed for five months. This has put the business in “dire financial straits,” according to the suit, “with the likely result of having to file bankruptcy due to lost profits…”
The Yergler family has established a GoFundMe account with the goal of raising $10,000 to help cover the cost of the lawsuit. As of Dec. 29, just $1,415 had been raised.