The Journal Gazette
 
 
Wednesday, October 27, 2021 1:00 am

Judge dismisses suit involving restaurant's mask challenge

DEVAN FILCHAK | The Journal Gazette

A lawsuit filed by a Bluffton restaurant after it was shut down by the local health department because of mask mandate violations has been dismissed.

The lawsuit was filed in December by the owners of Yergy's State Road BBQ LLC against the Wells County Health Department, Gov. Eric Holcomb and the state of Indiana, saying the business was improperly closed for violating masking requirements and capacity limits.

Yergy's lawsuit challenged the health department's order, arguing the health department didn't have the authority to shut the restaurant down in the first place.

The lawsuit also challenged every executive order the governor had put into place during the pandemic, saying they don't comply with the U.S. and state constitutions – “the direct consequence of which is unjust injury to Yergy's fundamental civil rights, liberty interests, and property rights.”

The Emergency Disaster Law the governor used to put the executive orders in place is also unconstitutional, the lawsuit said.

The mask mandate was lifted by the governor in April, and Yergy's reopened in May.

Wells County Circuit Court Judge Kenton Kiracofe dismissed the lawsuit, ruling the case is now moot since the primary issues raised aren't in effect.

“While (Yergy's) argues that even if the issues presented are now moot, the issues presented are of great public interest,” Kiracofe said in his order. “While this court may agree that there are interesting constitutional issues presented during this uncertain period of Indiana's history, the ability of a trial court to issue, essentially, an advisory opinion is contrary to the precedent of Indiana law.”

An advisory opinion is “when it would not change or affect the legal relations between the parties,” the order states.

Kiracofe did not address the suit's concerns of sovereign immunity or justiciable claims since he had already ruled the case moot.

“While the court is sympathetic to the hardship the government's response to the pandemic has caused (the) plaintiff's establishment, along with other Hoosiers, the subsequent actions by the governor and the Indiana General Assembly have made the issues presented in the complaint moot,” Kiracofe concluded.

Kiracofe isn't the first judge in northeast Indiana to dismiss a lawsuit regarding statewide COVID-19 orders for being moot. Allen Superior Court Judge Jennifer DeGroote dismissed a lawsuit filed by Ceruti's Catering Inc. in September.

dfilchak@jg.net


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