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Law360 (September 16, 2020, 8:59 PM EDT ) A Dallas state court judge on Wednesday freed Texas and its governor from a salon owner's claims her constitutional rights were violated when she was jailed for reopening her business in violation of coronavirus restrictions, but said the city can't dodge the suit yet.
Dallas County District Judge Eric Moyé said at the end of an hourlong Zoom hearing arising from Shelley Luther's arrest that he would dismiss the salon owner's counterclaims against the state and Gov. Greg Abbott under governmental immunity. He said he would dismiss some but not all of the counterclaims against the city and would issue a written order to that effect.
Luther, who owns Salon A La Mode, claimed the governor and local officials overstepped the legislative powers delegated to them during disasters by creating new laws and defining crimes, according to court documents. Abbott's pandemic-related executive orders, which began closing portions of the state in mid-March, originally carried fines of up to $1,000 and a 180-day jail sentence for violators.
Luther gained infamy in Texas when Judge Moyé sentenced her to seven days in jail after finding her in contempt for violating a restraining order that prohibited her from operating the salon. After Luther's jailing, Abbott admonished the judge and removed the jail sentence option. Luther, who was freed after serving two days of the sentence, is now running for a state Senate seat in a Sept. 29 special election.
Arguing for Dallas, Cal Estee of the city attorney's office said Luther's business, S&B Hot Mess Enterprises LLC, had no standing to challenge whether the Texas Disaster Act of 1975 or various emergency orders entered by city officials to curb the pandemic's effects were constitutional. And he argued Luther's request for injunctive relief seeking to prohibit the city from reenacting the orders or entering new ones is moot, seeing as the orders in question are no longer in effect and that there is no credible threat of future injury.
"There is simply no affirmative relief that the defendants can obtain against a law that is no longer in effect," Estee said. "Now, that does not mean the defendants can't raise challenges as a defense in enforcement matters. While the city would certainly disagree with those defenses, the defendants can certainly raise them."
Luther's counterclaims also seek damages for Dallas' alleged regulatory takings that occurred when the emergency regulations required her to close down her nonessential business without providing economic relief.
Warren Norred of Norred Law PLLC, representing Luther, told Judge Moyé on Wednesday that there is no reason the city needs heightened disaster authority. He argued that other cities in Texas have and that Dallas could pass an ordinance on face coverings and other COVID-19-related precautions.
"This is slow, ordinary stuff," he said. "They can pass an ordinance that can do all they want to do. What they can't do is have an ongoing declaration of disaster."
In her countersuit, Luther detailed the financial burden of being forced to close her salon.
"The emergency regulations did not say that Luther could put her lease on hold and not bother with its payment, or that Luther could gaily skip through the grocery store and pick up whatever food she needs free of charge," she said. "Nor did it give her the power to fill her fuel tank and wave a copy of the emergency regulations at gas station attendants as she drives off in lieu of payment."
Estee argued Wednesday that Luther's takings claim was invalid because she didn't establish a vested property right that had been impacted by the emergency orders.
Dallas is represented by Cal Estee, Pei Yu and Andrew M. Gilbert of the Dallas City Attorney's Office.
Luther and her business are represented by Warren Norred of Norred Law PLLC.
Texas and Abbott are represented by Anne Mackin of Texas' Office of the Attorney General.
The case is City of Dallas v. S&B Hot Mess Enterprises LLC et al., case number DC-20-06131, in the 14th District Court in Dallas County, Texas.
--Editing by Orlando Lorenzo.
For a reprint of this article, please contact reprints@law360.com.
