Johnson County attorney seeks dismissal of health order lawsuit

BUFFALO — Last week, Johnson County Attorney Tucker Ruby filed a motion to dismiss the class action lawsuit filed against County Health Officer Dr. Mark Schueler, county health officers from all 23 counties and state health officials, including Dr. Alexia Harrist and Gov. Mark Gordon, seeking the elimination of all COVID-19-related health orders.

The five-page dismissal motion, filed on Friday in the Fourth Judicial District Court, argues the plaintiff's case lacks merit on a variety of procedural issues and fails to comply with the Wyoming Rules for Civil Procedures.

The brief argues the class action lawsuit is moot because Schueler's health orders not only had statutory authority, but were "superseded by orders issued by the State Health Officer, effective Dec. 9, 2020." 

Ruby also argues that petitioners lack standing in the case because there is no direct connection between the health orders and any alleged injuries plaintiffs may have suffered.

Citing two separate Wyoming Supreme Court decisions, the motion argues that the Fourth Judicial District Court lacks jurisdiction to hear the case because the wrong person was summoned for the complaint. 

An employee of the Johnson County Attorney's Office was served on March 3. However, the WRCP requires that summons be delivered, "to the chief executive officer thereof, or to its secretary, clerk, person in charge of its principal office." 

In this case the summons should have been delivered to Schueler, the Johnson County Commission (who appointed Schueler) or the Johnson County Clerk. According to the Wyoming Supreme Court, any omissions required under WRCP are "fatal" and would render any judgement "void." 

Plaintiffs also failed to properly "name the court and the parties," and provided insufficient service of the process, according to the motion, because the plaintiff misidentified the court of jurisdiction and failed to mention whether the court was located in Johnson or Sheridan county.

In the final argument for dismissal, the motion states plaintiffs failed to make a claim that the court could grant relief. This combined with the fact that the complaint served at the Johnson County Attorney’s office was incomplete, failing to include any attachments or exhibits.

In addition to seeking dismissal, Ruby also asks the court to reimburse any reasonable costs and attorney's fees that Schueler's defense incurred responding to the suit.

The class action suit filed contends that various executive orders and health orders related to the coronavirus were “issued arbitrarily without lawful authority and have caused confusing and chaotic outcomes.”

The lawsuit claims that Gordon's executive order on March 13, 2020, declaring a state of emergency was arbitrary, unlawful and not rooted in fact.

The plaintiffs include six individuals and two advocacy organizations.

The petitioners seek to nullify all public health orders; to prohibit all marketing campaigns, including public service announcements, related to the coronavirus; and a corrective order on how coronavirus may be diagnosed and/or labeled.

The petitioners are represented by Buffalo attorney Nick Beduhn. Formerly of Cody, Beduhn has twice been suspended from practicing law in Wyoming for failing to provide his clients with competent defense. His right to practice has been reinstated.