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Brewster county judge asks court to toss Gage suit

By Stephen Paulsen, The Big Bend Sentinel

ALPINE — The county judge in Brewster County is asking a federal court to throw out a lawsuit filed against him over Brewster County’s emergency hotel closures.

J.P. Bryan, owner of the Gage Hotel in Marathon, previously filed a lawsuit against several Brewster County officials over the county’s decision to close hotels and short-term rentals as a precaution against the coronavirus pandemic. A local judge denied Bryan’s request to grant a restraining order voiding the restrictions, and Bryan withdrew his lawsuit.

Then Bryan filed another lawsuit last month in federal court — this time only against Brewster County Judge Eleazar Cano. The lawsuit argues that local officials didn’t show coronavirus was an “imminent threat,” that the local health official isn’t an expert and that therefore Bryan is entitled to at least $75,000. It also argues that the orders violated Bryan’s constitutional rights, including the Fourteenth Amendment (because Bryan was ostensibly discriminated against as a hotel owner) and the Fourth Amendment (because the hotel closures supposedly amounted to a seizure of property).

In his response — a motion to dismiss filed last Thursday — Cano asked the federal court to throw out the case.

Cano’s lawyer, J. Eric Magee, argues that during the Brewster County orders, state officials had also declared a public health crisis.

On March 13, Texas Governor Greg Abbott declared a state of disaster in all Texas counties, the filing notes. John W. Hellerstedt, commissioner of the Texas Department of State Health Services, likewise said coronavirus was an “immediate threat” that “poses a high risk of death to a large number of people.” State law allowed Brewster County to implement its own emergency measures, Magee argues — especially while state officials were doing the same.

Magee also cites a coronavirus-era decision from the Fifth Circuit Court of Appeals, which ruled earlier this year that “when faced with a society-threatening epidemic, a state may implement emergency measures that curtail constitutional rights” so long as the restrictions have “some real or substantial relation to the public health crisis.” (The court at the time was ruling on Texas’s abortion restrictions during coronavirus, which it ruled were unrelated to the pandemic and tossed.)

With his lawsuit, Magee argues, Bryan is trying to have the court rule on a “political question” in an effort to “usurp the power of the governing local authority.” The filing asks the court to dismiss Bryan’s claims “in their entirety,” including the claim that Cano or any other Brewster County officials violated Bryan’s constitutional rights.

Cano could not be immediately reached for comment on the filing. Bryan’s lawyer, Frank Ainsa, did not respond to a request for comment.