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AG’s Lawsuit Against St. Louis Mask Mandates Has Difficult Road, Experts Say

Susan McGraugh, Bill Freivogel, Eric Banks
File photo
Lara Hamdan / St. Louis Public Radio
Susan McGraugh, Bill Freivogel and Eric Banks joined the Legal Roundtable on "St. Louis on the Air."

Last spring, Missouri legislators approved a new law designed to restrict local authorities’ powers during pandemics. But its language fails to mention masks or indeed any public health restrictions beyond ones that affect “access” — and for that reason, legal experts said, it’s unlikely to be the cudgel Attorney General Eric Schmitt needs to block new mask mandates in St. Louis and St. Louis County.

Schmitt filed suit against the mandates yesterday, citing House Bill 271, which Gov. Mike Parson signed into law in June. The new law restricts local governments, saying they may not take any action that "directly or indirectly closes, partially closes, or places restrictions on the opening of or access to" businesses or other entities without following certain steps.

But three lawyers who convened Tuesday for St. Louis on the Air’s Legal Roundtable said that the focus on “access” seems unrelated to mask mandates, suggesting it would not apply to the public health orders that went into effect Monday after being issued by St. Louis Mayor Tishaura Jones and St. Louis County Executive Sam Page.

“I think the mayor and the county executive will have strong arguments to make that this law does not apply to their mask orders because [requiring masks] doesn't have anything to do with access,” said Bill Freivogel, a lawyer who works as a journalism professor at Southern Illinois University-Carbondale. “You can still go in. I think that's a strong argument.”

“When a statute is ambiguous, of course, you look for a precedent — which there is none,” noted Eric Banks, a former St. Louis city counselor now in private practice at Banks Law. “[So] in addition to that, look for legislative intent, and it's clear that the legislative intent behind the statute was to not adversely affect commerce. So anything that deals with closing a business, anything that deals with limiting the amount of patrons in a business, could be affected by the statute, but certainly it was not intended to prevent local authorities from requiring masks.”

Added Susan McGraugh, a professor at St. Louis University School of Law, “I have to agree that it's an overreach to try to work masks into what is very clearly an access mandate.”

The attorneys noted that Schmitt’s case relies heavily on masking being contrary to guidance from the Centers for Disease Control and Prevention for vaccinated people, but the CDC issued new guidance Tuesday calling for indoor masks in communities where the virus is surging.

Also noted: Schmitt, who is running for Senate, did not request a temporary restraining order to stop the mandates from going into immediate effect.

Banks suggested there was a good reason for that.

“Because it is an incredible, difficult standard to justify a temporary restraining order, followed by a preliminary injunction followed by a permanent injunction,” Banks noted. “And because I believe that this is all about political posturing as opposed to winning lawsuits anyway, what difference does it make?”

The Legal Roundtable Weighs In
Listen to the discussion on St. Louis on the Air

The Legal Roundtable also discussed problems at the St. Louis Circuit Attorney’s Office, the fight over a special prosecutor in St. Louis and litigation over the Rams’ 2016 departure for Los Angeles.

St. Louis on the Air” brings you the stories of St. Louis and the people who live, work and create in our region. The show is hosted by Sarah Fenske and produced by Alex Heuer, Emily Woodbury, Evie Hemphill and Lara Hamdan. Paola Rodriguez is our production assistant. The audio engineer is Aaron Doerr.

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Sarah Fenske served as host of St. Louis on the Air from July 2019 until June 2022. Before that, she spent twenty years in newspapers, working as a reporter, columnist and editor in Cleveland, Houston, Phoenix, Los Angeles and St. Louis.