Governor Edwards wins in one federal court, takes the stand in another

Bar owners objected to being shut down during ongoing pandemic

The courthouse for the United States District Court for the Eastern District of Louisiana in downtown New Orleans (Photo by Jarvis DeBerry / Louisiana Illuminator)

LAFAYETTE — Gov. John Bel Edwards took the stand in a federal court hearing Monday to defend the restrictions on bars that he enacted in July to help slow the spread of the coronavirus. Earlier Monday, a federal judge in New Orleans ruled against a separate group of bar owners who, making an identical argument of unconstitutional overreach, had sued the governor in that court.

In denying the request for an injunction filed in New Orleans by ten bar owners in Southeast Louisiana, U.S. District Judge Martin Feldman wrote, “The case turns on a classic who-decides question: As between democratically accountable state officials and a federal court, who decides what measures best protect Louisianans during a global pandemic? The answer is state officials.”

In a written statement after that victory, Gov. Edwards indicated that he was “pleased” that Judge Feldman had upheld the restrictions.  Edwards wrote: “My orders are consistent with my authority and also with recommendations of public health experts and President Trump’s White House Coronavirus Task Force, which puts Louisiana in the “red zone” for new cases and “yellow zone” for testing positivity rates and recommends bar closures as part of the strategy to slow the spread of this illness. We have already lost more than 4,400 Louisianans to this illness, and we must take every action we can to fight for the health of our state.”

Monday’s hearing followed a lawsuit filed by a separate group of bar owners from across Acadiana who want U.S. District Judge Robert Summerhays to do the thing Judge Feldman wouldn’t do:  place an injunction on the governor’s order and which would allow the bars to operate as usual. Edwards’ order has limited bars to takeout and delivery service and restricted on-site consumption of alcohol unless it is part of full restaurant table service.

Just like the case in the New Orleans federal court, the plaintiffs in the Lafayette federal court are represented by attorney Jim Faircloth, who served as executive counsel for Republican Gov. Bobby Jindal’s administration.  Judge Summerhays heard testimony from several bar owners and former Commissioner of the Louisiana Office of Alcohol and Tobacco Control Murphy Painter.

After the governor testified for nearly two hours, both sides rested their cases, prompting Judge Robert Summerhays to end proceedings for the day.

Faircloth wanted Painter to testify about an investigation he conducted in which he reportedly found many bars operating in blatant violation of the governor’s order, but the judge sided with the defense’s objection and did not allow the testimony. 

Painter was instead limited to recounting the policies and practices he was familiar with when he held office for about 15 years through 2009. In an unrelated case, Painter was in federal court in 2013 after he was acquitted of charges of identity theft and computer fraud. 

The governor was the only witness called by the defense.

“I was concerned we could lose our ability to deliver life-saving care in our hospitals,” Edwards said when asked to recount the events that led to his July 11 decision to issue the order.

Edwards said the recommendation from his health officials at that time was to revert back to the total lockdown restrictions of Phase 1, but he was “very reluctant to go backwards” and put more economic strain on businesses in Louisiana.

The data from contact tracers showed about 25 percent of the outbreaks were coming from bars, and the White House Coronavirus Task Force recommended the closure of bars, Edwards said.   

“Because that is where social distancing cannot occur,” Edwards said, recounting words from the White House’s recommendation. “That was their words — not mine.”

In an effort to limit the impact on the bar industry, the governor said his order allowed bars to do curbside delivery of alcoholic beverages — a service that was illegal prior to the pandemic.

Edwards appeared calm and unfazed under Faircloth’s cross-examination, though the plaintiffs did not dedicate much time to it as the 6 p.m. hour approached.

Faircloth tried to ask the governor to explain the state’s practices of enforcing the order, but the judge again sided with a defense objection and would not allow such questioning.

“They put on nobody from the ATC or State Fire Marshal to contradict all our witnesses who testified that enforcement is unfair,” Faircloth said in closing. 

Summerhays is expected to rule in the coming days.

After Edwards ordered bars closed, Republicans in the Louisiana Legislature asked Lousiana Attorney General Jeff Landry for an opinion on the legality of that order. Landry — a persistent critic of Edwards — released an opinion that said Edwards’ order “does not pass the constitutional test” and “cannot be enforced with criminal or financial sanctions.”  The plaintiffs in both cases echoed Landry’s arguments in their motions seeking injunctions.

In his ruling Feldman wrote, “Attorney General Landry’s thoughtful opinion is due respect, but it lacks the force of law and binds neither the Court nor the Governor.”

Editor Jarvis DeBerry contributed to this report.

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Wesley Muller
Wes Muller traces his journalism roots back to 1997 when, at age 13, he built and launched a hyper-local news website for his New Orleans neighborhood. In the following 22 years since then, he has worked as a journalist for the Times-Picayune in New Orleans, the Sun Herald in Biloxi, WAFB-9News CBS in Baton Rouge, and the Enterprise-Journal in McComb, Mississippi. Much of his work has involved reporting on First Amendment issues and watchdog coverage of municipal and state government. He has received several honors and recognitions, including McClatchy's National President's Award, the Associated Press Freedom of Information Award, and the Daniel M. Phillips Freedom of Information Award from the Mississippi Press Association, among others. Muller is a New Orleans native, a Jesuit High School alumnus, a University of New Orleans alumnus, a veteran U.S. Army paratrooper, and an adjunct English teacher at Baton Rouge Community College. He lives in Ponchatoula, Louisiana, with his teenage son and his wife, who is also a journalist.