IN THE CIRCUIT COURT OF Lu (1Q COUNTY, WEST VIRGINIA CIVIL CASE INFORMATION STATEMENT (Civil Cases Other than Domestic Relations) 1. CASE STYLE: Case No. ,p Plaintiffls) Judge: Alex McLaughlin PianfilI's Phone: vs. Days to DefendantG) Answer Type of Service Governor Jim Justice Hand delivery Name 1900 Kimawha Blvd, E. Defendant's Phone: 304-558-2000 Srreet Address Charleston, WV. 25305 ciry, State. Zip Code II. TYPE OF CASE: General Civil Adnption Mass Lingariun [As defined in TCR. 25 04w] Administrative Agency Appeal 3 Asbasios Civil Appeal from Magistrate Court FELA Asbestos i Miscellaneous Civil Pelilion Other: 7 Mental Hygiene Haheas Corpus/0111a Extraordinary Guardianship Other; Medical Malpractice JURY DEMAND: LJ Yes No CASE WILL BE READY FOR TRIAL BY (Month/Year): DO YOU OR ANY IF YES, PLEASE SPECIFY: OF YOUR CLIENTS i :1 Wheelchair accessible hearing room and other raeilites 0R WITNESSES Reader Or other auxiliary aid for the visually impaired 1" THIS CASE Interpreter er ether auxiliary aid for the deaf and hard nfhearing REQUIRE SPECIAL Spokesperson or other auxiliary aid for the Speech impaired i . 1 Foreign language Interpreterespcuiy language: Yes N0 1 Other; Attorney Name: Alex McLaughlin Representing: Firm. Defendanr Address: 2611 Kanawha Ave SE, Charleston, WV Tclephone: 304541-2947 Proceeding William an Attorney CrosseDefendaI-lt 3rd-party Plalnrm - 3rdei'arty Defendam Original and 4 copies of complaint enclosed/attached. 7,7 Dated: 9 4 2020 Sig-naturc' SCA-C-lfll): Civil Case Statement (Other than Domestic Relations) Revision Date: 4/2020 Plaintiff: MC Lou/V3 t- )4 et al Case Number: vs. Defendant: A 1'1 3 et at CIVIL CASE INFORMATION STATEMENT CONTINUATION PAGE WV Department of Health and Human Resources Defendant?s Phone: 304?356-4122 Defendant's Name 350 Capitol Street Days to Answer: Street Address Charleston, WV, 25301 Type of Service: Hand delivery City, State, Zip Code WV State Board of Education Defendant's Phone: (304) 558?3660 Defendant's Name 1900 Kanawha 351 Days to Answer: Street Address Charleston, WV, 25305 Type of Service: Hand deliVBYY City, State, Zip Code Defendant's Phone: Defendant's Name Days to Answer: Street Address Type of Service: City, State, Zip Code Defendant's Phone: Defendant's Name Days to Answer: Street Address Type of Service: City, State, Zip Code Defendant's Phone: Defendant's Name Days to Answer: Street Address Type of Service: City, State, Zip Code Defendant?s Phone: Defendant's Name Days to Answer: Street Address Type of Service: City, State, Zip Code Defendant's Phone: Defendant's Name Days to Answer: Street Address Type of Service: City, State, Zip Code IN THE CIRCUIT COURT OF KANAWHA COUNTY, WEST ?7 55 {Pm} Alex McLaughlinPetitlonerCase No. ?my; Governor Jim Justice; the West Virginia Department of Health and Human Resources; and the West Virginia Board of Education, Respondents. PETITION FOR WRIT OF MANDAMUS PROHIBITION 1. Relief Sought 1. Petitioner Alex McLaughlin, as the parent of two school-aged children residing in Kanawha County, brings the instant Petition for Writ of Mandamus and/ or Prohibition to compel Governor Jim Justice to convene the West Virginia Legislature immediately to perform its constitutionally assigned duties under the following provisions of the West Virginia Constitution: Article VI, Section 1 6-1), which provides that the ?legislative power shall be vested in a Senate and House of Delegates?); and Article VI, Section 54 664(2)), which provides that the ?Legislature of West Virginia, in order to insure continuity of state and local governmental operations in periods of emergency . . . shall have the power and the immediate duty . . . to adopt such other measures as may be necessary and proper for insuring the continuity of governmental operations.? 2. Petitioner also brings the instant Petition for Writ of Mandamus and/or Prohibition under the Equal Protection provision, Article 111, Section 17 3-17), of the West Virginia Constitution to prohibit Governor Jim Justice, the West Virginia Department of Health and Human Resources and the West Virginia Board of Education from enforcing the unlawfully discriminatory portions of the West Virginia School Re-entry Metrics and Protocols program, originally announced by Governor Justice on August 14, 2020,1 and then signi?cantly revised over a single weekend, ostensibly after Governor Justice ?stayed in contact? with an unidenti?ed set or subset of undisclosed experts or stakeholders, and ?decided that we needed to pivot just a little bit.?2 Petitioner speci?cally seeks to prohibit Respondents from enforcing against Kanawha County public and private schools the unconstitutional discrimination against schools in counties that meet the criterion for ?orange? status prior to the scheduled September 8, 2020, school-year start date. lrreparable harm to our education system will result if the instant action is delayed by 30 days. Therefore, notice under W. Va. Code 55- 17-3 is not required. 11. Parties, Standing, and Venue 3. Petitioner Alex McLaughlin is a citizen, taxpayer, and resident of Kanawha County, West Virginia. Petitioner has two school-aged children. Petitioner?s older child is a rising tenth grader currently enrolled at Charleston Catholic High School, a private school in Kanawha County, who currently participates on the school?s soccer team. Petitioner?s younger child is a rising third? grade student who completed second grade at Kanawha City Elementary, a Kanawha County public school, and is currently enrolled at Kanawha City Elementary to begin third grade on September 8, 2020, although Petitioner has also applied for this child to be admitted to Sacred Heart Grade School, a private school in Kanawha County, and she has been accepted, and a deposit has been paid, but not tuition. The decision and timing on whether to send Petitioner?s younger child to the constitutionally mandated ?free? public school or private school in Kanawha County has been, and continues to be, heavily in?uenced by the uncertainty surrounding the 1 See ://governor.wv. 2 See gov/News/press?releases/Z 2 status of schools in light of Covid-l9 and the decisions to be made by various decision?makers surrounding whether and which schools will be allowed to offer in-person instruction, including but not limited to the West Virginia School Renentry Metrics and Protocols program. 4. Respondent Governor Jim Justice is the duly elected Governor of West Virginia. The Of?ce of the Governor is situated in Kanawha County, West Virginia. According to press releases and press conferences issued by the West Virginia Of?ce of the Governor, Governor Justice, along with Respondent West Virginia Department of Health and Human Resources and Respondent West Virginia Board of Education, adopted and intends to enforce the West Virginia School Re-entry Metrics and Protocols program. 5. Respondent West Virginia Department of Health and Human Resources is an agency of the State of West Virginia, situated in Kanawha County, West Virginia. According to press releases and press conferences issued by the West Virginia Of?ce of the Governor, DHHR, along with Respondent Governor Justice and Respondent West Virginia Board of Education, approved and intends to participate in the enforcement of the West Virginia School Re-entry Metrics and Protocols program. 6. Respondent West Virginia Board of Education is an agency of the State of West Virginia, situated in Kanawha County, West Virginia. According to press releases and press conferences issued by the West Virginia Of?ce of the Governor, BOE, along with Respondent Governor Justice and Respondent West Virginia Board of Education, approved and intends to participate in the enforcement of the West Virginia School Re-entry Metrics and Protocols program. While the press release also refers to the West Virginia Department of Education the BOE, not WVDE, is the actual constitutionally-designated authority, and appoints and oversees the West Virginia ?superintendent of free schools,? see Article XII, Section 2, who in turn oversees the Department of Education. 7. Petitioner, as the father of two school-aged children, both of which are eligible for ?free? public school in Kanawha County, has standing to seek all of the relief sought in this Petition. One of Petitioner?s children is currently enrolled in private school in Kanawha County. Petitioner?s other child is currently still enrolled in ?free? public school and would still attend ?free? public school in the coming school year, but for the uncertainty surrounding whether it will be offered, which is the over?arching subject of the relief sought, and may still attend ?free? school. 8. Kanawha County was declared ?orange? for purposes of the School Re?entry Metrics and Protocols program sometime on Saturday, August 29, 2020, and Petitioner received an automated phone call from Kanawha County Schools on Sunday, August 30, 2020, at 1:03 pm, informing Petitioner that if Kanawha County was ?orange? on September 5 2020, in?person school would not be allowed to begin on September 8, 2020, or until the county dropped to ?yellow.? Therefore, the threat of enforcement of the unconstitutional provisions in the School Re?entry Metrics and Protocols program has been made and the controversy has been fully joined as to parents of school-aged children in Kanawha County. 9. Kanawha County is plainly the proper venue for this Petition. It is the seat of state government and Respondents are located in Kanawha County. It is also the county in which Petitioner resides and in which Petitioner?s children attend school, as well as one of the currently ?orange? counties being discriminated against and threatened with further discrimination under the School Re?entry Metrics and Protocols program. Background on the Risks of Covid by Age 10. The risk to children, or anyone under the age of 25, of dying from Covid is lower than the risk to older adults. According to the most recent CDC data available, from the week ending February 1, 2020, to the week ending August 29, 2020, a total of 34,497 children and young adults under age 25 have died in the US of all causes. Of those almost 35,000 children and adults under 25 who have died in that time span, a total of 360 are recorded as having a death that ?involved Covid.?3 This is only one percent of the total deaths in that below 25 age range, meaning 100 times as many children and people under 25 died during the pandemic without ever having had Covid as died having had Covid. Only 60 of those deaths involving Covid involved children under 14, while CDC reports that 300 of them were age 15-24. These numbers are lower than CDC estimates of ?u deaths in the under 18 age range for the past two ?u seasons.4 11. Another way of looking at this ?gure is that as a percentage of total deaths ?involving Covid,? the under 25 age group accounts for just 360 of the total of 170,566 deaths recorded by CDC (as of September 2, 2020?note that there is lag in the CDC data), which is only 0.2% of the total deaths involving Covid.5 12. The CDC still considers the regular seasonal ?u to be higher risk to children.6 3 See weekly/indexhtmaiAgeAndSeX 4 See 8.htm (estimating 477 pediatric ?u deaths in 2018?19; 643 estimated pediatric deaths in 2017?18, including 528 among children ages 5 -17) Id. 6 See, covidl 9.htm# 1D %2Dl 9 . ess%20from%20?u. (?The risk of complications for healthy children is higher for ?u compared to 13. If one adds up all the deaths involving Covid for all of the age ranges up to age 44, the total is 4,128, which is almost exactly 3% of the 170,566 total deaths involving Covid reported by CDC.7 14. Over the age of 44, the CDC reports Covid death data for ?ve additional age bracketsJevery 10 years starting at 45-54, up to 75-84, and then an 85 and over bracket. Notably, for each age group over age 44, ?deaths involving Covid? as a percentage of ?deaths from all causes? is between 8.6% (for ages 45-54) and 10.1% (for ages 75-84). Argument A. The West Virginia Constitution Requires that the Legislature Be Convened 15. Governor Justice declared a state of emergency in response to the Covid-l9 virus on March 16, 2020.8 By declaring a state of emergency, Governor Justice invoked the emergency powers available to the executive under West Virginia Code section 15?5-6. In a subsequent proclamation, on March 30, 2020, Governor Justice proclaimed that we are in a ?war against this invisible enemy,? referring to the coronavirus.9 16. The West Virginia Legislature, in enacting section 15-5-6, did not impose an explicit time limit on a Governor?s declaration of a state of emergency or emergency powers, as many other states do. It appears that Governor Justice, by his actions, does not believe that he is under any obligation to convene the Legislature to legislate, and that he can, in secrecy, convene a panel of undisclosed ?people from West Virginia, out?of?state, and around the world, our medical experts, the education community, our teachers and counties, and many more,? to restrict, modify, and otherwise alter the right of the people to freedom of movement, freedom of 7 Id. 8 See l6-2020.pdf. 9 See 4250.pdf 6 assembly, the right to education, and the right to ?free school? embedded in the West Virginia Constitution for so long as he, in his sole discretion, declares that an emergency exists, or at least until the Legislature convenes itself. 17. It appears, further, that the Legislature currently lacks the political will or the strength to insist upon its right and undertake its duty to legislate?that is, to convene (even remotely), to hold public hearings, to investigate facts, to take testimony from experts and citizens, to consider data, and to pass laws for the continuity of the government during this Covid pandemic, laws that re?ect the Wisdom and will of the people. 18. The West Virginia Constitution does not tolerate the Governor?s inde?nite usurpation of the legislative power in times of disaster or emergency, nor does it tolerate the Legislature?s abdication of that power. In clear and unmistakable terms, the West Virginia Constitution provides: The Legislature of West Virginia, in order to insure continuity of state and local governmental operations in periods of emergency resulting from disasters caused by enemy attack, shall have the power and the immediate duty (1) to provide for prompt and temporary succession to the powers and duties of public of?ces, of whatever nature and whether ?lled by election or appointment, the incumbents of which may become unavailable for carrying on the powers and duties of such of?cers, and (2) to adopt such other measures as may be necessary and proper for insuring the continuity of governmental operations. W. Va. Const, Article VI, 54. 19. This provision of the Constitution imposes an ?immediate duty? on the Legislature, in the event of an emergency or disaster, ?to adopt such . . . measures as may be necessary and proper for insuring the continuity of governmental operations.? Whether the West Virginia School Re-entry Metrics and Protocols program, originally announced by Governor Justice on August 14, 2020, and then immediately revised on August 17, 2020, is thought of as constituting a measure for ?insuring the continuity of governmental operations,? or as a measure for 7 undermining the continuity of government operations, it clearly intrudes on the Legislature?s constitutional jurisdiction. 20. Whether the Legislature had a duty to convene and pass laws to provide for the continuity of governmental operations in the spring, in the immediate aftermath of the emergency declaration, is an open and at this point irrelevant question. It has now been almost six months since the Governor first declared in response to Covid a state of preparedness on March 4, 2020, the parents and children of this State slogged through the remainder of one semester of school, then we waited all summer for decisive action. The Legislature has had ample opportunity to convene, to commence hearings on Covid, take testimony, and provide for the continuity of government operations. Whether ?immediate duty? contemplates action within the 30 days of a disaster may be an open question, but there is no question it requires action within six months. 21. Governor Justice may contend that he was writing metaphorically rather than literally when he referred to the coronavirus pandemic as a ?war against an invisible enemy?10 and that therefore the constitutional provision, which refers to ?disasters caused by enemy attack,? does not apply. But such a narrow construction of Article VI, 54, is plainly unwarranted. This becomes immediately apparent if one simply suspends disbelief for a moment and imagines that the Covid-l 9 virus really were akin in lethality to the 1918 and that otherwise robust and healthy of?ce-holders all across the State were stricken ill, unable to continue in their offices, or killed by the virus. There is no doubt that in such a circumstance the ?rst clause of Article VI, 54, would apply, and the Legislature would be called upon ?to provide for prompt and temporary succession to the powers and duties of public offices, of whatever nature and whether ?lled by 10 See 8 election or appointment, the incumbents of which may become unavailable for carrying on the powers and duties of such of?cers.? The second clause of section SIP?requiring the Legislature to take measures to ?insur[e] the continuity of governmental operations??~ applies with equal force in this instance, where no such disaster or carnage has surfaced or looks likely after almost six months, yet we the people continue to be ruled by executive whim and secret weekend meetings rather than democratically enacted legislation. 22. The Governor must also convene the Legislature because the Governor, in promulgating the School Re-entry Metrics and Protocols program and then almost immediately revising it in secret over a single weekend, is making the laws, not enforcing the laws. The School Re-entry Metrics and Protocols pro gram decrees when and under what circumstances schools, including private schools, may gather their students in person. It therefore violates Article VI, Section 1, of the West Virginia Constitution, which commits the legislative power to the Senate and House of Delegates. Article XII, Section 1, of the Constitution, which provides that the ?Legislature shall provide, by general law, for a thorough and ef?cient system of free schools,? is even more speci?c, and produces the same result. 23. A Writ of Mandamus issued from the Circuit Court of Kanawha County is the proper mechanism by which to compel a state of?cial to perform a non-discretionary duty. See Painter v. Ballard, 788 30, 35 (W. Va. 2016). The Governor?s power to convene the legislature was originally cast in discretionary language in Article VI, Section 19, of the West Virginia Constitution, except where three-?fths of the Legislature applies for it. However, the Continuity of Government Amendment, Article VI, Section 54, plainly creates a non?discretionary duty to convene the Legislature in the event of an extended emergency that threatens the continuity of governmental operations. Section 6?54 provides that, in periods of emergency resulting from disasters caused by enemy attack, the Legislature ?shall have the power and immediate duty? to act to ?insure continuity of state and local governmental operations.? The Legislature cannot act immediately to exercise its constitutionally designated power or ful?ll its constitutional duty unless convened by the Governor, and therefore the amendment plainly imposes a non- discretional duty. 24. The only conceivable alternative to that interpretation of section 6-54 of the Constitution?that it creates a non~discretionary duty for the Governor to convene the Legislature?is that it, at the very least, strips the Governor of the power to continue inde?nitely to take action to insure or undermine the continuity of governmental operations by committing those functions to the Legislature. Thus, as an alternative to Writ of Mandamus, a Writ of Prohibition must issue. ?The writ of prohibition shall lie as a matter of right in all cases of usurpation and abuse of power.? W. Va. Code 53-1-1. The Governor has not only failed in his non-discretionary duty to convene the Legislature, he has usurped its power. B. The School Re-entry Metrics and Protocols Program Violates the Equal Protection Clause of the West Virginia Constitution 25. The West Virginia Supreme Court has already held that Article XII, Section 1, of the West Virginia Constitution, which requires the State to provide a ?thorough and efficient system of free schools,? creates a fundamental right to education. See pt. 3, Phillip Leon M. v. Greenbrier County Bd. 0fEduc., 484 909 (W. Va. 1996). Therefore, under the Equal Protection Clause of the West Virginia Constitution,11 any discriminatory classi?cation impacting access to education or ?free schools? must be stricken unless the State (in this case Respondents, acting ultra vires in a legislative capacity) ?can demonstrate some compelling state 11 West Virginia Constitution 3?17 is commonly referred to as the ?Equal Protection Clause? and interpreted in light of federal jurisprudence and United States Supreme Court holdings 0n the Equal Protection Clause in the Fourteenth Amendment of the United States Constitution. 10 interest to justify the unequal classi?cation.? Id, 484 at 914. Protecting children and the community are both undoubtedly compelling state interests,12 but the analysis does not end there. The discriminatory classi?cations and measures used must be not only rational,13 but also narrowly tailored to achieve that compelling interest. ?[U]nder a strict scrutiny analysis, the State is required to tailor narrowly the measures used to [further a compelling state interest] so as to preserve the child?s fundamental, constitutional right to an education.? Id. at 916. 26. While prior cases focused on the ?right to an education,? the West Virginia Constitution actually speaks to a right to ?free schools.? ?Free schools? encompasses a bundle of services that is much more than education. At every point in our history as a State, ?free schools? has been understood as encompassing education at a physical location, in a building or buildings where children assemble with their peers and are committed to the care and supervision of teachers. For parents?taxpayers and citizens??free schools? provides critical childcare and child supervision, for ?free.? When the democratic bodies such as the Legislature and political subdivisions establish tax rates to pay for these ?free schools,? one of the services taxpayers expect in exchange for those taxes is free supervision. For the students themselves, non?voters who are being isolated and kept in a seemingly permanent state of reduced productivity and lowered expectations by the Governor?s decrees, ?free schools? has been in this State, since its inception, the single most important productive and social activity that we provide for them. 12 Protecting ?teachers? or ?school service personnel? speci?cally, as a class or classes distinct from other working adults in similar situations, like daycare workers, bartenders, and nurse?s aides, is very de?nitely not a compelling interest, but is a nakedly discriminatory, unlawful, reprehensible, and intolerable classi?cation. 13 For example, it is irrational on its face to focus and therefore unconstitutional to focus on protecting children, who have much lower Covid risk than adults, it is irrational to compel daycare workers to care for elementary school children while letting teachers off, and it is patently irrational to close schools while permitting lower-value, higher?risk-of?transmission assemblies like those in bars and private parties. 11 Production no longer occurs much within the household for most West Virginians. Few children who stay home in West Virginia are going to contribute to their family economies by milking cows, cutting hay, or knitting sweaters. 27. Until Covid, the right to ?schools? and the right to ?education? have been regarded as essentially inseparable, except in limited circumstances where individual students must be separated from the school building in order to protect and preserve the safety of it for the other students. That was the compelling interest at stake in Phillip Leon v. Greenbrier County Bd. 0fEduc., 484 909 (W. Va. 1996), in which a student who brought a gun to school was expelled so the community could continue to provide ?safe and secure schools? for the other students. Schools and education still are basically inseparable. In spring, my younger child, then a second grader in a Kanawha County public school, received approximately 20 minutes of direct contact time (by video) with her teacher per week, instead of hours of contact time per day. The teacher provided weekly assignments and essentially said, ?Good luck.? My daughter?s education in the spring, such as it was, was not provided by the State, but her parents. 28. The West Virginia School Re-entry Metrics and Protocols program announced by Governor Justice on August 14, 2020, and revised on August 17, 2020, includes the following unlawful and unconstitutional discriminatory categories and distinctions: (1) It unlawfully discriminates against counties with 10 or more ?cases? per 100,000 population by depriving the parents and students of those counties of many of the benefits associated with school, including organized sports, and, in certain circumstances (referred to in the next category of discrimination), of access to the school building as a place for learning, with the accompanying bene?ts of social interaction for the children and school supervision for the parents and children. 12 (2) It unlawfully discriminates against counties that are designated as ?orange? counties prior to the start of the school year on September 8, 2020, by depriving those counties, but not counties that are designated as ?orange? after September 8, of access to the school buildings as places for learning, with the accompanying bene?ts of social interaction for the children and school supervision for the parents and children. (3) Within counties that are designated as ?orange? or ?red,? it unlawfully discriminates by prohibiting private assemblies and economic activity for the purpose of education private schools), a constitutionally privileged activity, while not prohibiting any other forms of private assembly, including such low- utility and constitutionally disfavored activities as assembling in bars for the purpose of socializing and consuming intoxicating beverages.14 (4) Within counties designated as ?orange? or ?red,? it unlawfully discriminates against school?aged children, by prohibiting or restricting their main productive and social activities, which are school and school-sponsored sports and extracurricular activities, without giving them the less restrictive option of complying with social distancing, masking, and hygiene protocols that are deemed to be suf?cient for adults in all other settings. (5) It unlawfully discriminates against essential workers and non-essential workers alike?~ including attorneys such as Petitioner, but also more importantly grocery workers, daycare workers, and healthcare workers such as nurse?s aides?by protecting teachers, a politically powerful group, from the obligation to show up 14 In fact, this activity is so disfavored by our Constitution that it is technically prohibited. See W. Va. Const, Art. 6, 46. 13 to work and take on whatever viral perils may exist even in facilities that are able to comply with all of the social distancing, masking, and hygiene protocols deemed to be sufficient for the protection of workers. (6) It unlaw?illy discriminates against counties that report 10 new ?cases? of Covid per 100,000 population compared to counties that report 10 new ?cases? of ?u per 100,000 population, given that the ?u is universally recognized as being a greater threat to school-aged children than Covid.15 29. All of these acts of discrimination are unlawful and unconstitutional because they are not narrowly tailored to achieve a compelling state interest. Many of them fail even the much lower level of scrutiny under the rational basis test.16 In fact, Respondents, who conducted their meetings and deliberations regarding their school re?entry program behind closed doors, have not identified the compelling interest they seek to serve by using these discriminatory categories. The science underpinning their re-entry metric is also completely missing. The re-entry metric hinges on the number of new ?cases? of Covid, but the metric is completely indifferent to whether those ?cases? are or even though transmission rates vary enormously between the two categories. According to a recent study, there is a 40?fold difference in transmission rates between expectorating cases and cases.17 It is completely unclear as to whether Respondents? interest is in protecting children? 15 See, covidl 9.htm# 1 ess%20from%20?u. (?The risk of complications for healthy children is higher for ?u compared to 16 See note 12, supra. 17 See Luo, et a1., ?Contact Settings and Risk for Transmission in 3410 Close Contacts of Patients With in Guangzhou, China,? Annals of Internal Medicine (August 13, 2020) 14 who are not at risk from Covid, and more at risk from the seasonal flu, for which we do not shut down schools?or to protect mlnerable members of the community from widespread community transmission. Assuming it is the latter, then it is not clear why they have not embraced rigorous contact tracing as a more narrowly tailored and less restrictive alternative to shutting down schools. Also, if community transmission were truly Respondents? concern, then it is impossible to justify the discriminatory focus on children and the closing of schools and school sports, while adults are free to assemble in their customary venues for socializing, recreation, exercise, and work?such as at bars, gyms, weddings, parties, stores and of?ce buildings. 30. Almost everything we know about the deliberations of Respondents in formulating their school re-entry program comes from just two press releases. In the first, issued on August 14, 2020, Governor Justice announced: ?We've been working on this, night and day, for along long time, with all the experts that we could gather: people from West Virginia, out-of?state, and around the world, our medical experts, the education community, our teachers and counties, and many more.? However, Governor Justice does not identify a single expert by name or explain a single expert?s quali?cations. The only ?expert? mentioned in the press release is Dr. Clay Marsh, the State Coronavirus Czar, who is a pulmonologist and critical care physician with apparently no background or expertise in infectious disease or epidemiology?despite having been named as the ?coronavirus czar.? While Dr. Marsh is undoubtedly an expert in the treatment of respiratory illness and the management of respiratory disease, especially in the critical care setting?and therefore probably counts as an expert in the treatment and management of Covid-related respiratory illness despite practicing medicine in our State, with very few Covid ICU admissions thus far?he has no discernible expertise in the prevention, spread, transmission, or public health implications of viral infections such as Covid. These 15 infectious disease subjects, not critical care protocols, are the subjects that would be useful in making the kind of determination embodied in the School Re-entry Metrics and Protocols program?that a certain number of new ?cases? per day, whether or not, requires the closing, or at least prohibits the opening, of school buildings for children. 3 1. If other ?experts? besides Dr. Marsh were involved in these closed?door sessions, Governor Justice has not disclosed them. Given that Respondents have not identi?ed an infectious disease expert who participated in formulating the school re-entry program, we might at least hope that this program has been adopted by other states who have consulted with such experts. Alas, Governor Justice actually boasts that Respondents? school re-entry program is Rerspondents? own brainchild, unique to West Virginia. Governor Justice proudly proclaims, ?There?s no state that we know of that has a rating system similar to what we?re going to propose to do.?18 32. As things were left on August 14, 2020, Governor Justice provided us with no names of any quali?ed infectious disease expert or epidemiologist who may have worked on this? almost certainly because there was none?and no information about what considerations went into the decision or how the metrics they chose were ?narrowly tailored? to meet a compelling state interest. Instead, as announced on August 14, it appears that the metrics and protective measures were arbitrarily chosen, as by throwing darts at a dartboard. A more sinister possibility is that these metrics and measures were tailored quite carefully to satisfy some illegitimate interest, such as the behind?the-scenes maneuvering of a powerful interest group, like the teachers? unions, who stand to gain from the closing of school buildings by receiving full pay for performing only a small portion of their contractual duties, and by being relieved entirely of their 18 See ://governor.wv. l6 contractual obligation to supervise our children while parents work, while lower-paid daycare workers are forced to assume whatever perils may genuinely be associated with supervising children. 33. As for Dr. Marsh, he defended the School Re-entry Metrics and Protocols program on August 14 only by pointing out that, by being based on a per capita measurement, it did not discriminate against large countieswmand by pointing out that it was a measurement subject to rapid change, as though added uncertainty in our lives is a special gift to us as we try to plan for the days, weeks, and months to come. Dr. Marsh is quoted as saying: ?The new daily cases are then population-adjusted per 100,000 so small counties and big counties can be compared equally.? He continued: ?The idea behind this [metric] is we actually do this at a metric that can change on a daily basis, which then re?ects the status of the county. If we wait for the number of active cases to be cleared, that would generally be a minimum of 14 days to see any change and this model changes things much more rapidly and does it on a population-adjusted basis.? 34. Like Governor Justice, Dr. Marsh boasted that he and Governor Justice had come up with something novel, referring to their approach as ?innovative,? rather than ?proven? or ?supported by sound science and data.? 3 5. Dr. Marsh also claimed on August 14 that they were ?trying to balance the need to get our students back in class while also protecting them, as well as our teachers, service personnel, and the whole community.? Protecting students is undoubtedly a compelling state interest, but there is absolutely no evidence that closing certain schools based on an arbitrarily selected cut- point in an arbitrarily chosen and essentially meaningless metric protects children. There isn?t even evidence that children need to be protected from Covid beyond basic hygiene. Basic hygiene has been deemed to be suf?cient to protect children from the flu for years, despite being 17 transmitted widely, and the CDC states plainly that ?u is more dangerous to children than Covid. The incredibly low ?Covid involved? death counts under age 25, recounted above, speak for themselves. 36. Protecting ?teachers,? and ?[school] service personnel? are illegitimate discriminatory classi?cations. Nothing makes teachers or school service personnel more deserving of the State?s protection than other workers, such as daycare workers and bartenders?and this is especially obvious because the whole premise of shutting down schools, remarkably, is that teachers are not essential. Protecting ?the whole community? might be a compelling state interest, but neither Governor Justice nor Dr. Marsh has explained why it is that the protections we deem to be suf?cient and adequate for bartenders, store clerks, of?ce workers, janitors, daycare counselors, and the service personnel at daycares, even in ?orange? and ?red? countiesm such as the use of masking, social distancing, and basic hygiene??are inadequate to protect the community from assemblies in schools. In fact, in the case of bars?where people remove their masks to drink and then leave them down because they are drunk, lean in and speak loudly to communicate over the background noise and music, and so on?these masking, social distancing, and basic hygiene measures are much less likely to be effective and protective than in schools. 37. The most egregious example of discrimination of this kind is evident when one considers that daycare counselors?typically paid less than teachers?will be compelled to assume the physical supervisory role of teachers for many of the elementary school children cast out of school buildings, while the teachers themselves receive full (higher) pay and bene?ts even though they have been excused as a group from performing this one, allegedly perilous, duty. This is intolerable. If there really were an intolerable risk or danger associated with supervising 18 children even where social distancing, masking, and hygiene protocols can be followed, why must lower-paid daycare workers assume the perils of that portion of the job of higher-paid teachers? If the concern with schools is that the elementary-aged children are not going to be able to comply with these measures (which the Governor has not investigated, much less demonstrated), then why are those children going to be permitted to attend daycares? Given the extremely steep age curve associated with the risk of death and other complications from Covid, one could easily defend as compelling some sort of discriminatory classi?cation that protects and excuses older or health-compromised workers (such as older teachers and daycare counselors and others), while requiring younger workers to continue if they Wish to receive pay and bene?ts. The discrimination between daycare workers and teachers, on the other hand, is not only narrowly tailored, but irrational and constitutionally intolerable. 38. On August 17, allegedly ?after consulting with [undisclosed and unidenti?ed] state medical experts over the weekend,? Governor Justice announced that Respondents ?decided we needed to pivot just a little bit.?19 In other words, having had months to identify real experts and ?gure something out, he decided over the weekend that he didn?t like what he?d just announced and that he would change it. Among the changes was one that he did not call attention to in his August 17 press release: To the detriment of parents and students in Kanawha County, he lowered the threshold number of new ?cases? for ?orange? status from 15 to 10 per day. 39. In the August 17, 2020, press release, Governor Justice and Dr. Marsh again boasted about how no one else is doing anything like this, as though being an outlier without a proper infectious disease expert on staff has become something to take special pride in. According to the press release: ??We listened to the experts [still unidenti?ed] and we came up with something 39 See l9 that was revolutionary; something that no one in the nation has come up with: our color coding system,? Gov. Justice said. ?We also said, along the way, we would listen and be ?uid. We?ve stayed in contact and we decided that we needed to pivot just a little bit.? In other words, they did something completely different than every other state after months of allegedly thinking and consulting about the subject, then decided to change it over the weekend, but, rest assured, it?s still completely different than what every other state is doing. 40. According to Dr. Marsh, the School Re-entry Metrics and Protocols program was ?inspire[ed]? by a Harvard University ?Risk Level Model,?20 but they changed it, to make it a ?real innovation from the Harvard model.? A print-out of the Harvard Risk Level Model page that Governor?s August 17 press conference linked to is attached to this Petition as Exhibit A. 41. One of Respondents? most signi?cant ?innovations,? which neither Governor Justice nor Dr. Marsh mentions, is the limiting of proposed health?based restrictions on freedom of activity to just the schools rather than the Harvard recommended category of broad lockdowns, or so-called ?stay?at-home orders.? According to the Harvard ?Risk Level Model,? the ?orange? level should correspond to a community choice between ?stay-at?home orders? or ?rigorous test and trace programs.? Thus, the Harvard ?Risk Level Model? does not provide any support form and cannot be invoked to provide support for?the discrimination against schools and children engaged in by Respondents, while permitting other forms of economic, social, and recreational activity to go forward. The Harvard ?Risk Level Model? does not include a separate category of ?school closings,? much less the category of ?school closings but bars, weddings, and private parties allowed? that Respondents have embraced. The Harvard ?Risk Level Model? also obviously does not support the outrageous discrimination between counties that are designated 20 See 20 ?orange? before September 8, and counties that are designated ?orange? after September 8. There is no grandfathering or similar exception to the general ?stay?at?home orders? recommended as one of two possible choices in Harvard?s orange category. 42. Another constitutionally critical point is that the Harvard ?Risk Level Model? suggests two choices at the ?orange level.? One of the options is ?stay?at?home orders,? which presumably would encompass schools (but not discriminate egregiously against schools and children as a class, while permitting most adult assemblies for purposes of recreation and production). The other, plainly less restrictive, option is to implement ?rigorous test and trace programs.? Why was this latter option not selected, at least in preference to closing the constitutionally protected ?free schools? of this State? Respondents cannot claim that their School Re-entry Metrics and Protocols program is ?narrowly tailored? to accomplish their objective when the very model they rely upon in support of it suggests a much less restrictive means of achieving the same goal. Again, the most likely explanation is that some special interest group?not the public or the public health, and certainly not children?benefits from closing schools, and that special interest group is actively promoting it. 43. Lastly, the interest in providing ?safe and secure schools,? recognized as compelling in Phillip Leon v. Greenbrier County Bel. 0fEduC., 484 909 (W. Va. 1996), cannot be the compelling interest that justi?es these discriminatory classi?cations, for one simple reason: One does not provide ?safe and secure that the Supreme Court in Phillip Leon is referring to a safe school building, threatened by potential violence from a student who brought a gun into itwby closing them, ever. The interest in safe and secure schools is undoubtedly advanced by requiring schools to comply with certain social distancing, masking, and hygiene protocols. Closing schools is devastating to that interest, and does not advance it. 21 Prayer for Writ For the foregoing reasons, Petitioner prays for the following Writ or Writs of Mandamus and/or Prohibition: A Writ of Mandamus or Prohibition requiring Respondent Governor Justice to immediately convene a special session of the Legislature to ?adopt . . . measures as may be necessary and proper for insuring the continuity of governmental operations,? including the continuity of the operation of ?free schools? of the State of West Virginia, to the extent possible in light of the Covid virus; (2) A Writ of Mandamus or Prohibition prohibiting Respondents from enforcing in Kanawha County against public or private schools the ?orange? level provisions of the School Re-entry Metrics and Protocols program that currently prohibit re? opening while ?orange? but not remaining open while orange; (3) A Writ of Mandamus or Prohibition prohibiting Respondents from enforcing in Kanawha County against public or private schools the ?orange? level provisions of the School Re?entry Metrics and Protocols program that discriminate against the activities of schools and children, even where possible to comply with social distancing, masking, and hygiene protocols, while not imposing a more general ?stay-at-horne order? on other non-essential activities; and (4) A Writ of Mandamus or Prohibition prohibiting Respondents from enforcing in Kanawha County against public or private schools the ?orange? level provisions of the School Re-entry Metrics and Protocols program, even in the event of a general ?stay-at-home order,? without ?rst considering, in a transparent and accountable manner, whether ?rigorous test and trace programs? would provide a 22 narrowly tailored and less restrictive. means for achieving any compelling State interest identi?ed. Veri?cation of Petition for Writ of Mandamus and/or Prohibition l, Alex. McLaughlin: swear or affirm and otherwise verify that the foregoing statements are true and accurate, except that where otherwise noted as upon infonnation and belief, I believe them to be true. f: 5 5,9? If}: ,5 Mfr-"Alex McLaughlin; Petitioner 9696) 2611 Kanawha Ave SE Charleston, WV 253 O4 alexanderdincl?mutlook.corn Tel: 3046419947 STATE OF WEST VIRGINIA, COUNTY OF KANAWHA, Sworn to and subscribed before me, a Notary Public, in and for Kanawha County, West Virginia, on September 4, 2020. My commission expires: 4:51.55? Lu W, (?77 1: Cry." $3434.73". :2 Nota?iy Public a . I shatteseon. WV 2 - Wain Expires uneasifaeaa Z. 3? 23 PETITION FOR WRIT OF MANDAMUS PROHIBITION - EXHIBIT A - HARVARD LEVEL 9/4/2029 Key Metrics for Suppression - Harvard Global Health lnstitute GLOBAL HEALTH DOMAINS PORTAL OPPORTUNITIES NEWSLETTER EVENTS STORIES ?75:2 . :1 eEanaenncs Key Metrics for Suppressron Researchers and Public Health Experts unit bring clarity to key metrics guiding corona: response Harvard Global Health lnst?tute, Harvard?s Edmond .5, Sr Center for Ethics Rockefeller Foundation, eovEdAetNos Local; crease and many others join forces, launch new gums; Risk Level map and CGVID suppression guidance for policy makers and the public Explore the CGVED gist: Level Map Uncertainty is the currency of pandemics. As evidence on the new coronavirus, how it spreads and who falls ill from it emerges slowly, policy makers and the public have to base their decisions on the best information available. Experts help interpret the evidence, but they may differ on details that can be confusing for non~experts and ?ltering out what matters from a rising sea of misinformation has become a daunting task. To help cut through the noise and sometimes con?icting advice, a network of research, policy and public health experts convened by Harvard?s Global Health lnstitute and Edmond Safra Center for Ethics today launches a Key Metrics For COVID Suppression framework that provides clear, accessible guidance to policy makers and the public on L. annual-Ha Inna- Ian-pl .ir-Jh?m. 4 59/412020 Key Metrics for Suppression - Harvard Global Health institute how to target and suppress more effectively across the na?on. ?The public needs clear and consistent information about risk levels in differentjurisdictions for personal decision-making, and policy?makers need clear and consistent visibility that permits differentiating policy across jurisdictions?, explains Danielle Allen, director of the Edmond l. Safra Center for Ethics at Harvard University. ?We also collectively need to keep focused on what should be our main target: a path to near zero case incidence.? The new framework brings clarity to metrics that help communities determine the severity of the outbreak they are responding to. A new Risk Level map shows if a county or state is on the green, yellow, orange or red risk level, based on the number of new daily cases. The framework then delivers broad guidance on the intensity of control efforts needed based on these risk levels. it offers key performance indicators for testing and contact tracing across all risk levels, as a backbone for suppression efforts. yap. so. . . covro RISK LEVEL: GREEN 5 -. r'l-m .. 2K4 $412020 Key Metrics for Suppression - Harvard Global Health institute cowonlsx LEVEL: YELLOW 7' RISK LEVEL: ORANGE pva ll MT. "awkwau?w The framework also allows for a breadth of options for what to do beyond (testing, tracing and supported isolation) when jurisdictions are at yellow and orange levels. Public of?cials need to make strategic decisions suitable to their context. Once a community reaches the red risk level, stay-at-home orders become necessary damn-? Minivan?. 3E4 9l4/2020 Key Metrics for COVID Suppression - Harvard Global Heaith Institute again. The framework also draws attention to the need to focus on suppression at every risk level. ?Local leaders need and deserve a uni?ed approach for suppressing with common metrics so that they can begin to anticipate and get ahead of the virus, rather than reacting to uncontrolled community spread?, says Beth Cameron, Vice President for Global Biological Policy and Programs at the Nuclear Threat initiative and a member of the COVlD-Local.org team. ?Unless and until there is a whole of government response, with measurable progress communicated similarly and regularly across every state and locality, U.S. leaders will be left to react to the chaos of the virus rather than being able to more effectively target interventions to suppress it. Robust programs are key on the pathway to suppression. We need to consistently apply data?driven testing of hotspots, combined with contact tracing based testing, especially in states where case numbers are rising rapidly,? says Ashish K. Jho, director of the Harvard Global Health institute. "it is what we need to get the virus level so low that we don?t have large numbers of people getting sick and dying and that we can open up our economy.? - ?The metrics are now clear: we can reopen and keep open our workplaces and our communities,? observed Jonathan D. Quick, managing director for Pandemic Response, Preparedness, and Prevention, The Rockefeller Foundation, ?But achieving this will require a dramatic expansion of testing and tracing to again ?atten the curve and eventually suppress the pandemic to near zero new cases.? gamma #4