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Missouri appeals court says Jackson County can't challenge ruling banning 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 School on Jan. 12, 2022. A sign reminds visitors they are required to wear masks in the building.

The court's decision means that a previous ruling by a Cole County judge — which stripped local health departments of the ability to issue pandemic-related restrictions — remains in effect.

Jackson County has lost its bid to appeal a case in which a Cole County judge struck down COVID-19 restrictions issued by local public health departments.

The Missouri Court of Appeals ruled on Tuesday that Jackson County should have sought to intervene in the case earlier and not after Missouri Attorney General Eric Schmitt declined to appeal the Cole County judge’s decision.

Jackson County had argued that it was not until Schmitt declined to appeal that it became aware he was no longer representing the Missouri Department of Health and Senior Services (DHSS).

But the appeals court said the case had been pending for 11 months before Cole County Circuit Judge Daniel Green issued his ruling and was well publicized. And it noted that Jackson County stated in its own motion to intervene that Schmitt had filed numerous lawsuits against local governments and schools challenging their public health measures before he declined to appeal Green’s ruling.

“It seems disingenuous to argue that intervention must be allowed after judgment because Missouri Attorney General Schmitt unexpectedly declined to appeal the judgment,” the appeals court stated.

Attorneys for Jackson county could not be reached for comment. Doug Moore, a spokesman for St. Louis County, which also sought to intervene in the case, said, "The county is disappointed in the court's ruling and our attorneys are reviewing options to seek further review."

The Cole County case was filed in 2020 by a St. Louis County restaurant owner amid controversial shutdowns of restaurants and other public spaces in St. Louis and Kansas City. The suit alleged that regulations issued by DHSS unconstitutionally authorized local health departments to issue public health orders, such as quarantines and mask mandates, to curb the spread of COVID-19.

In November 2021, Green ruled in favor of the owner of the restaurant, Satchmo’s Bar and Grill, finding that local health departments’ pandemic-related orders violated the Missouri Constitution’s separation of powers provision.

“This case is about whether Missouri’s Department of Health and Senior Services regulations can abolish representative government in the creation of public health laws, and whether it can authorize closure of a school or assembly based on the unfettered opinion of an unelected official,” Green wrote. “This court finds it cannot.”

After Schmitt declined to appeal Green’s ruling, Jackson County and St. Louis County jointly moved to intervene. They were later followed by the Cooper County Public Health Center, the Livingston County Health Center and the Jefferson County Health Center. All of them argued that Schmitt’s refusal to appeal was contrary to the wishes of DHSS.

Schmitt opposed the intervention motions, arguing that he had the exclusive authority to determine whether to appeal a judgment and that Jackson County and the other parties seeking to intervene were trying to circumvent his authority.

The appeals court’s decision means that Green’s ruling remains the operative case law on the subject, unless the Legislature explicitly empowers DHSS to authorize local health departments to issue pandemic-related restrictions.

As a reporter covering breaking news and legal affairs, I want to demystify often-complex legal issues in order to expose the visible and invisible ways they affect people’s lives. I cover issues of justice and equity, and seek to ensure that significant and often under-covered developments get the attention they deserve so that KCUR listeners and readers are equipped with the knowledge they need to act as better informed citizens. Email me at dan@kcur.org.
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