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Judge blocks enforcement of St. Louis County mask mandate

The judge found Missouri’s Republican attorney general was likely to succeed on the merits of his case and that a new state law limiting local health orders is constitutional.

ST. LOUIS (CN) — A St. Louis County judge on Tuesday issued a temporary restraining order prohibiting the enforcement of a controversial local mask mandate designed to curb the spread of Covid-19 amid a surge driven by the delta variant.

St. Louis County Executive Sam Page and St. Louis City Mayor Tishaura Jones, both Democrats, enacted a second mask mandate on July 26 as virus numbers continue to climb in the state, making the region one of the first in the country to bring back masks.

Republican Attorney General Eric Schmitt filed a lawsuit later that same day challenging the mandate. The suit’s claims echo those of the first complaint filed by Schmitt, who is also a U.S. Senate candidate, against St. Louis County in May.

On July 27, after a contentious four-hour meeting, the St. Louis County Council voted 5-2 to rescind the mask mandate because opponents claim Page did not provide data backing up the mandate as required by HB 271, a new law passed by Missouri’s GOP-dominated Legislature in June which limits the time frame local health orders can be in effect without approval from elected officials.

Despite the vote, Page insisted the mandate was still in place, prompting Schmitt to file a motion for a temporary restraining order with an amended lawsuit.

St. Louis County Circuit Judge Ellen Ribaudo made it clear in her three-page order Tuesday that her ruling “in no way speaks to or determines the wisdom of the St. Louis County Counsel [sic] vote to terminate the face covering order,” but rather whether HB 271 gives the County Council the power to terminate the order.

Ribaudo found the state was likely to succeed on the merits and that it met its burden of showing irreparable harm without the order.

“Today, the Missouri Attorney General’s Office delivered a huge win for the people of St. Louis County and obtained a temporary restraining order, halting the enforcement of the mask mandate,” Schmitt said in a statement. “This is an important, hard-fought victory, but our fight against unreasonable and unconstitutional government overreach continues.”

Page had the opposite reaction on Twitter.

“We are disappointed in the judge’s decision as more and more mask requirements are put in place across the country to help slow this deadly virus,” the county executive tweeted. “The CDC recommends wearing masks in public places and we ask everyone to follow that guidance as we continue our vaccine efforts.”

The TRO is effective only for St. Louis County, which is an entirely different political entity than the city of St. Louis. The mask mandate remains in effect for the city.

Ribaudo’s order was issued a few hours after both sides presented their cases to her in a remote WebEx hearing on Tuesday morning. Missouri Solicitor General John Sauer and county attorney Neal Perryman sparred over irreparable harm and HB 271’s constitutionality during the one-hour hearing.

Sauer, in arguing for the TRO, said there were three types of irreparable harm caused by the mandate. He said the state suffers whenever it is blocked from enforcing state law, that the 1.1 million citizens of St. Louis County were harmed by an unlawful mask mandate and that the testimony presented by county residents showed personal and economic harm.

“There are human costs and human harms from the social isolation and impact on children, the impact on small businesses and things of that nature,” Sauer said.

Perryman argued there is no irreparable harm to the state in keeping the mask mandate.

“We're not in a situation where someone's defending an enforcement action and raising the statute as a defense or the invalidity of the order as a defense,” Perryman said during the hearing. “We're here with the attorney general coming in and mentioning that we have to stop this public health order in the midst of a rising problem and infection rate with the delta variant, which hopefully won't last very long.”

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Perryman also argued that HB 271 failed to meet the original purpose clause, making in unconstitutional.

He said HB 271 started as a law to create databases to allow the public to see government expenditures, but morphed into a massive bill that included items such as a raise in salary for the city license inspector and the public health order in question.

“The cases we cite in our brief … we think they're all exactly spot on and demonstrate that [the law] is indeed unconstitutional both because it violates Article 3, Section 21 [of the Missouri Constitution] relating to original purpose, which was local government expenditure databases, and because it violates a single-subject rule,” Perryman said.

Sauer countered that the Missouri Supreme Court has consistently ruled against Perryman’s original purpose argument.

“If this were the case, the legislative process would be seriously hampered, and therefore the court liberally interprets the original purpose clause,” Sauer said.

Ribaudo questioned both attorneys, clarifying that she was only ruling on whether HB 271 was followed and not the mask mandates themselves and asking about the effect a ruling either way would have on clarifying the issue for the public.

“The problem is that we are dealing with issues of tremendous importance, as we all recognize in the state of Missouri that many people are choosing not to get vaccinated, whether it be because of concern for themselves or a belief that they don't need to get vaccinated … and until such time as we do get that, we are going to continue to be in the state that we are in, with regards to people getting sick and losing lives, which raises the stakes, tremendously,” the judge said at the conclusion of the hearing.

She added, “But the court's decision has to be based upon what the law is, not what the politics of this pandemic situation [are], because as we can all recognize, and I don't think I'm speaking in a way that anybody would disagree with, this pandemic is the most political thing I've ever seen. And it's going to continue to be political. My concern is to deal with the legal issues.”

Ribaudo set a preliminary injunction hearing for Aug. 17. Until then, the TRO prohibits St. Louis County from enforcing its mask mandate.

A hearing to decide the state’s motion has been in legal volleyball since Schmitt’s filing last Wednesday.

The matter was scheduled for a hearing in Ribaudo’s courtroom on Friday afternoon, but was officially removed to the U.S. District Court for the Eastern District of Missouri about 30 minutes before the hearing.

A hearing in the federal court was requested for Monday morning, but U.S. District Judge Stephen Clark ruled over the weekend that most of Schmitt’s claims, including those surrounding the TRO motion, were state claims. Clark remanded the case back to the state court, where a hearing was finally held on Tuesday.

Despite a widely available vaccine, Missouri has become a hotspot for the virus’ resurgence. The delta variant combined with a largely unvaccinated population in the state’s rural conservative southwest, which contains several highly transient summer vacation destinations, has created a deadly cocktail.

Health officials worry about the outbreak spreading to the St. Louis and Kansas City areas.

On Monday, the St. Louis Metropolitan Pandemic Task Force reported 452 Covid-19 hospitalizations in the last month, up from 160 the previous month. There are 124 Covid-19 patients in the ICU compared to 26 on July 2. There have been 36 Covid-19 deaths in the last seven days – a 400% increase from the high from the previous month – and ICU beds are at 80% capacity.

Schmitt, in his lawsuit, claims making children wear masks in school is unreasonable because children are at low risk of contracting Covid-19 and have low mortality rates and less severe symptoms when they do contract the virus. It also claims the orders are unconstitutionally vague and hamper religious freedoms.

The attorney general further argues that the mask mandate undermines vaccination efforts.

Schmitt's first lawsuit filed in May was dismissed without prejudice after Page dropped the first county mask mandate based on declining infection numbers.

On Tuesday afternoon, Schmitt extended his campaign against mask mandates, filing a similar lawsuit against Kansas City in Jackson County Circuit Court challenging that city’s masking order.

“Today, I filed suit against Kansas City to stop the imposition of a mask mandate on the people of the Kansas City region,” he said in a separate statement announcing the suit. “This continued unconstitutional and unreasonable government overreach must stop, especially in the face of a widely available vaccine.”

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