Utah business owners plan lawsuit against Gov. Gary Herbert, Lt. Gov. Spencer Cox over COVID-19 orders

Washington • Several Utah business owners say they plan to sue Gov. Gary Herbert, Lt. Gov. Spencer Cox and other officials over their decisions to close businesses amid the coronavirus outbreak, a move the plaintiffs and their attorneys say left small shops “devastated” and violated their constitutional rights.

The yet-to-be-filed lawsuit will allege that the orders by state and county leaders were “bad decisions based on bad data,” according to a news release about the lawsuit.

Attorney Garrett Smith, who says he has seven plaintiffs and is likely to add five more soon, said Friday he plans to file the suit in federal court by the end of the month.

The attorneys are talking to a few more potential plaintiffs “that haven’t quite fully agreed,” Smith said. “But now I think they’re getting a little more courage to stand up.”

Announcement of the planned suit comes just about 2½ weeks before the primary election in which Cox is a candidate and who has been leading in several polls. The other candidates — Jon Huntsman, Greg Hughes and Thomas Wright — have criticized the Herbert-Cox administration’s orders restricting businesses during the pandemic.

An “influencer” connected with the announcement of the lawsuit is a supporter of Hughes, the most strident critic of the administration, but his campaign denies any involvement in the planned legal action.

The offices of Herbert and Cox declined to comment on the potential lawsuit.

So far, the only plaintiff named by the lawyers in the forthcoming suit is Kerby Barker, owner of Centerville-based Epic Party Events, which touts its mobile gaming truck with high-definition TVs that allow up to 32 people to play video games and also enjoy the onboard virtual racing simulator.

The owner says the state’s decisions to stem the coronavirus spread robbed him of his right to operate his business.

“We had just acquired our competitors after working tirelessly for over two years to build our business to a place where it could support my growing family,” Barker said in a news release. “When the governor and lieutenant governor shut down the economy, my business went from thriving to $0 in revenues, overnight.”

Barker said the state’s decisions deprived him of income to feed his three children and that because of the “debt we took on to acquire our competitor” he wasn’t able to obtain the “government bailouts” that other small businesses used to survive through the health care shutdown. It wasn’t clear why his business didn’t qualify for relief programs Congress pushed through to help small businesses.

Smith said he will seek class-action status for the suit and while it will ask for actual and punitive damages, the real goal is to hold government officials accountable and stop further orders that would restrict business activity.

“The goal here is not to sue the government and get a huge settlement because what that does is it just throws a hidden tax on all the taxpayers of Utah. They’re not the people that shut down the economy.”

Smith and fellow attorney Neil Skousen say that while Utah’s death rate from the pandemic was among the lowest in the nation, Herbert and Cox “chose to extend draconian restrictions that have devastated tens of thousands of Utah businesses, and cost the state 10% of its jobs so far.”

The lawsuit may also name Salt Lake County Mayor Jenny Wilson and Richard Bullough, director of the Summit County Health Department, as well as other unnamed “health department employees who imposed new rules on Utah’s businesses.” Smith says the ultimate list will depend on the plaintiffs involved.

In a May podcast hosted by Robyn Openshaw, who calls herself the “Green Smoothie Girl,” Smith said his intent with the lawsuit is to get the courts to strike down the state orders on the coronavirus.

“One of the things that I hope in Utah we can do is hold each of these elected officials personally accountable and personally liable,” Smith says on the podcast, according to a transcript of the remarks.

Openshaw says on the show that it has been difficult to get people to sign up as plaintiffs because business owners are afraid to challenge the government that regulates them.

“There’s a part of me that wants to shake them and say, ‘You cannot be denied the right to conduct business because you sued the people who destroyed your right to run a business,’” she says, according to the transcript.

Openshaw is a supporter of former House Speaker Greg Hughes’ bid for governor and on Wednesday donated $500 to his campaign ahead of the June 30 GOP primary.

Hughes spokesman Greg Hartley says the gubernatorial candidate was aware of rumblings about a lawsuit but didn’t know anything about it actually coming to fruition. Hartley said the lawsuit is not tied to the Hughes’ campaign.

Smith says that Skousen is the nephew of the late conservative author Cleon Skousen, who backed the John Birch Society movement and pushed New World Order conspiracies.

— Tribune reporter Lee Davidson contributed to this story.

Editor’s note: Jon Huntsman’s brother Paul Huntsman is the chairman of The Salt Lake Tribune’s nonprofit board of directors.