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Missouri judge rules local mask mandates and other COVID orders unconstitutional

St. Louis County Executive Sam Page speaks said Monday  at a press conference on Nov. 11, 2020. Page says the rising number of coronavirus cases in the region is unsustainable and will soon overwhelm hospitals.
Jason Rosenbaum / St. Louis Public Radio
St. Louis County Executive Sam Page removes his mask during a press conference in 2020. A circuit court judge in Cole County ruled mask mandates and other public health orders from local officials violate the Missouri constitution.

Updated at 4:45 p.m., Nov. 24 with comments from St. Louis Mayor Tishaura Jones’ spokesman that the ruling should not impact the city’s mask mandate.

A circuit court judge has declared a Missouri law that enables local health departments to issue public health orders unconstitutional and is ordering officials to lift such rules.

The ruling by Cole County Judge Daniel Green calls into question the future of mask mandates and other local health orders created to stem the spread of the coronavirus.

"Missouri's local health authorities have grown accustomed to issuing edicts and coercing compliance," Green wrote in his ruling. "It is far past time for this unconstitutional conduct to stop."

The judge's ruling comesin a lawsuit that a group of St. Louis-area residents and business owners filed against the state Department of Health and Senior Services to challenge such orders.

The Missouri law in question allows state health officials or local health departments to “create and enforce orders” to limit the spread of disease. Green ruled that the law violates the state’s constitution, which gives separate powers to different branches of government, and that elected officials should be the ones to issue such mandates.

“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,” the judge wrote in his ruling. “This Court finds it cannot.”

The state health department’s regulations also permit local governments to subject Missourians to “disparate treatment” by enabling a patchwork of local health orders, thus violating the equal protection clause of the state’s constitution, Green wrote.

Green ordered health departments to refrain from issuing public health orders, including rules that bar students from going to school because they could potentially spread the coronavirus.

Local officials are investigating how the judgment will affect mask orders. St. Louis Mayor Tishaura Jones and County Executive Sam Page in July issued a joint mask order that required people to wear face coverings in indoor public spaces.

St. Louis County’s mandate for face coverings in public spaces has been the target of a lawsuit from the state attorney general and a source of contention among politicians and residents.

St. Louis County government attorneys have determined the ruling does not affect its rules, since it is not involved in the case, county spokesman Doug Moore said.

“St. Louis County is not a party to that lawsuit,” Moore wrote in a statement. “The next hearing in the St. Louis County mask case is Nov. 30. We hope everyone will follow the masking and social distancing practices that public health experts recommend over the Thanksgiving holidays."

In St. Louis, city lawyers think the ruling does not apply because the city's health orders were not enacted under the rule that was overturned, a representative for Jones said. The city is operating under the legislature's June law requiring legislative bodies to pass a mandate every 30 days and the city's charter gives the Board of Aldermen the authority to enact health orders by resolution once they are issued.

"In short, our opinion at this point is that the ruling out of Cole County does not apply to us because we weren't operating under that rule that was overturned," said Nick Dunne, the mayor's spokesman in a voicemail.

Missouri Attorney General Eric Schmitt represented the state in the suit.

But Schmitt has sued St. Louis and St. Louis County, arguing that local public health orders are unlawful and an example of government overreach.

“We’re aware of the Court’s ruling and are prepared to enforce compliance with the Court’s order across the state,” said a spokesman for Schmitt’s office.

It would be unusual for the attorney general not to appeal this ruling, said James R. Layton, a former state solicitor general.

“I can't think of an instance in the past where a declaration that a regulation was invalid was not appealed, especially one that would have this broad of impact,” Layton said.

The ruling does not necessarily mean every health mandate enacted by a local government is void, he said.

“The judge has ruled that the Department of Health and Senior Services regulation that expressly gives local health authorities the ability to act, that that regulation is invalid,” Layton said. “But I really don't know how many of the regulations that are currently in place were implemented in reliance on that authority.”

Local government advocates said the ruling sets a worrying precedent.

“We are concerned about the erosion of local authority in many areas, including public health,” said Richard Sheets, executive director of the Missouri Municipal League, the statewide group of local government officials. “Our city officials are split on mask mandates ... [but] what we do oppose is the state taking away a locally elected governing body’s authority to make local decisions.”

Jason Rosenbaum contributed to this report.

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Sarah Fentem is the health reporter at St. Louis Public Radio.
Kate Grumke covers the environment, climate and agriculture for St. Louis Public Radio and Harvest Public Media.