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Jackson County urges Missouri appeals court to revisit ruling that banned local COVID orders

A flyer is taped to a glass door. It reads "Face Coverings are required while in this building." There are pictures on it depicting children wearing surgical-style face masks and demonstrating they should stay six feet apart. In the background, people wearing masks can be seen entering or leaving the building.
Carlos Moreno
KCUR 89.3
A woman enters J.A. Rogers Elementary on Jan. 12, 2022, where a sign reminds visitors they are required to wear masks in the building.

Attorneys for Jackson County and other municipalities argued that a judge's ruling last November, which declared "null and void" any unilaterally-issued COVID health orders, is impacting their ability to curb the spread of contagious disease.

A coalition of counties and local health centers on Tuesday urged judges on the Missouri Western District Court of Appeals to review a lower court’s ruling that struck down state health regulations regarding the control of infectious diseases.

Attorneys for St. Louis County, Jackson County, the administrator of the Cooper County Public Health Center and board of trustees for the Livingston and Jefferson County Health Centers, made the case Tuesday that they should be allowed to intervene in the case after a previous motion to do so was denied.

What’s more, they would like to see the Missouri Western District Court of Appeals also review Cole County Circuit Court Judge Daniel Green’s November ruling that struck down certain state health regulations and declared health orders intended to mitigate the spread of COVID-19 that were issued unilaterally by local health officials “null and void.”

Missouri Attorney General Eric Schmitt’s office declined to appeal the ruling, and sent school districts and local public health departments letters that threatened legal action if they failed to comply. Health departments faced little clarity from the state health department and described being plunged into confusion in the months after the ruling was issued.

Departments rescinded aspects of their COVID mitigation measures and others questioned the extent to which they could curb the spread of other infectious diseases at all as a result.

Neal Perryman, an attorney for St. Louis County who argued Tuesday on behalf of the appellants, said “the order is not a model of clarity” and that it’s impacting local officials’ authority to curb the spread of contagious diseases in their communities.

“This is not about ruining democracy, or tyranny, or all these loaded vitriolic words that we’ve heard throughout the briefing,” Perryman said.

In an interview after Tuesday’s hearing, Melanie Hutton, the Cooper County Public Health Center administrator who is an appellant in the case, said the ruling “has struck fear in the hearts of all the administrators.”

The ambiguity the ruling has left on when tools like quarantines can be used and enforced has left health departments “having to put an attorney before any decisions that we make.

“And responding to diseases is in real time,” Hutton said.

Kimberley Mathis, an attorney representing a restaurant, church and St. Louis area resident that originally challenged the state health regulations, said in an interview after Tuesday’s arguments that she’s “unaware of any confusion that’s been created by anyone other than the plaintiffs in this case” and those claims being repeated to the press.

Mathis told the panel of judges that “this case is about procedure” and stressed that county health boards can still approve of mitigation measures.

“The only thing this decision did is strike a state regulation that unlawfully authorized bureaucratic lawmaking and took that decision out of the hands of the elected officials,” Mathis said.

Mathis and the attorney general’s office have both argued the counties and local health centers have no standing to intervene in the case, and last week Mathis also filed a motion to dismiss the appeal.

The local entities didn’t file to intervene and appeal until mid-December, three weeks after Green’s judgment was issued. It was a point the judges pressed Tuesday, with Judge Anthony Gabbert noting it “was a well-known, publicized issue.”

“What was gained by waiting?” Gabbert asked.

Perryman noted that state officials had largely left mitigation measures at the discretion of local officials as the pandemic unfolded, and said after Green’s November ruling, “we had heard through the grapevine that DHSS would appeal.

“Now all of a sudden they didn’t,” Perryman said.

The Department of Health and Senior Services did request the attorney general’s office to appeal the case, which Schmitt’s office declined to do.

Judge Gary Witt noted that prior to Green’s ruling there had been multiple cases where the attorney general’s office was bringing legal challenges against local COVID restrictions, and that based on those lawsuits, “there was some acknowledgement that the attorney general was pushing to restrict the ability of health departments to enact some of these regulations.”

Solicitor General John Sauer, who argued on behalf of the Department of Health and Senior Services Tuesday, said that while the attorney general’s office did “vigorously defend” against the judgment, that ultimately the attorney general has the authority whether to pursue appeals in cases where the state is a party.

But when asked by Witt if it was the attorney general’s position that local health boards could still enact health orders that medical directors for health departments no longer could, Sauer said “we have taken no position on the merits in this appeal.”

Perryman said that stance is “the problem,” noting that in Schmitt’s letters to school districts and local public health departments he threatened enforcement action if they failed to follow Green’s judgment by removing affected health orders.

“We’re throwing the baby out with the bathwater here,” Perryman said.

This story was originally published on the Missouri Independent.

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