Judge hears arguments in COVID-19 lawsuit

Jerick Sablan
Pacific Daily News

Correction: Assistant Attorney General Robert Weinberg's name was misspelled in a previous version of this story.

A federal judge heard arguments Tuesday on whether a lawsuit against government officials over COVID-19 measures should be dismissed.

Thomas Peinhopf, owner of local bars Livehouse and The Shady Lady, filed a lawsuit against Gov. Lou Leon Guerrero and the Department of Public Health and Social Services Director Arthur San Agustin in September.

The lawsuit filed in the District Court of Guam states that Leon Guerrero and San Agustin have taken Peinhopf's private property without just compensation, violating the Takings Clause of the Fifth Amendment; that no due process was afforded; and that restricting some businesses is arbitrary, violating the Equal Protection Clause of the Fourteenth Amendment.

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Magistrate Judge Michael Bordallo heard arguments on the motion to dismissed filed by the attorney general.

Assistant Attorney General Robert Weinberg filed a motion to dismiss, arguing a failure to state a claim upon which relief can be granted.

The governor and the Department of Public Health and Social Services have taken measures to protect the public health and safety of Guam’s residents, he argued. 

Peinhopf asked the court to block those measures, claiming his constitutional right to operate a business outweighs the public health and safety argument, Weinburg wrote.

The measures taken to prevent the spread of COVID-19 are constitutional, and Peinhopf’s complaint should be dismissed.

Weinberg on Tuesday said the government of Guam is sympathetic to Peinhopf's economic concerns and those of other business owners on Guam.

"This is a serious matter and is not undertaken lightly," he said.

The responsibility to protect the safety and health of the people of Guam is entrusted to the governor, and Weinburg argues that the temporary measures are designed to contain the disease and are necessary.

Peinhopf, through his attorneys Thomas Fisher and Rachel Taimanao-Ayuyu, opposed the motion to dismiss, arguing his rights were violated.

They argued that Peinhopf and others like him are treated differently than other business owners. 

Fisher on Tuesday said his client has a right to make a living, which is a fundamental right. 

He argued that bars can be operated safely like other businesses have been able to do, and if the judge looked at it through strict scrutiny the government's argument fails.

Because of the governor and Public Health, Peinhopf is being deprived of economic benefits and use of his property, while other business owners are allowed to operate.

The resulting financial impact will impact his business for an indefinite period, and unless immediately rescinded, threaten future viability and sustainability of the business, his attorneys argued.

In response, Weinberg argued that the governor and the director of Public Health have sovereign immunity and qualified immunity.

Weinberg also argued that allowing other businesses, like grocery stores, hardware stores, and laundries to operate while businesses like bars, restaurants and theaters are closed is not a good comparison.

Businesses that allow people to gather in close proximity for extended periods of time without masks are different than businesses that don’t, he argued.

Judge Bordallo said he would take the matter under advisement and then make a report and recommendation for the chief judge as soon as possible. Parties will have 14 days to file an opposition and another 7 days to file a response to oppositions.

Bordallo said the chief judge will then either take the matter under advisement and then issue a decision or will request for further arguments.