On Nov. 22, Cole County Circuit Judge Daniel R. Green issued his judgment in Robinson v. Missouri Department of Health and Senior Services (DHSS), a case challenging the department's regulations allowing state and local health authorities to issue orders aimed at protecting public health.
Green struck down the regulations as unconstitutional, ordering the department and local health authorities to refrain from issuing verbal or written COVID-19 mitigation orders.
Since then, Missouri Attorney General Eric Schmitt has issued cease and desist letters to local health authorities and school districts directing them to drop their mask mandates and other pandemic mitigation measures.
UMKC law professor Allen Rostron says he thinks Schmitt has gone well beyond the court's judgment.
"I think the attorney general gave the impression that you just can't have mask requirements and quarantines and any other sort of orders with respect to COVID in the state anymore and I just don't think that's true," Rostron says.
As a state agency, DHSS is represented by the office of the attorney general. But when the judge ruled against the agency, Schmitt chose not to appeal.
Rostron point out that "if the decision can't be appealed because the attorney general doesn't want to do so, we're going to wind up with a decision where the policy gets set for the whole state of Missouri on a really important issue by one judge in Cole County."
Likewise, St. Louis attorney Jim Layton, who spent 22 years in the Missouri attorney general's office, says Schmitt's failure to file an appeal was "an extraordinary decision."
Rather than appeal the court's decision, Schmitt, who is seeking the Republican nomination for the U.S. Senate seat being vacated by retiring Sen. Roy Blunt, is invoking it in his efforts to stop schools from taking COVID-19 precautions.
Layton, who represents several school districts, notes that "schools have had the authority to address health issues among students, independent of the Department of Health and Senior Services, for decades," not to mention the authority to dictate how students should dress.
"So it's certainly surprising to see an attorney general out there saying that schools can't tell students what they can and can't wear to school," Layton says.
Rostron says the confusion arising from Schmitt's actions has left many school districts uncertain of what they are now allowed to do.
"If we take a position that's counter to the attorney general's position, it's just going to bring us too much legal difficulty and we don't want that cost and that hassle being imposed on us," Rostron says, referring to how school districts are reacting to Schmitt's cease and desist letters.
- James R. Layton, attorney at law, Tuethe Keeney Cooper Mohan Jackstadt, P.C.
- Allen Rostron, William R. Jacques Constitutional Law Scholar and Professor of Law, University of Missouri-Kansas City
