CLAYTON, Mo. (CN) — Despite being given extra time by a state judge to reach a compromise for the public good, attorneys for St. Louis County and the state of Missouri could not reach a settlement on the county’s controversial mask mandate.
Judge Ellen Ribaudo has given St. Louis County Attorney Neal Perryman and Missouri Solicitor General John Sauer yet another day to work out a deal. The next hearing is scheduled for 11 a.m. on Thursday, which is the day a previous temporary restraining order against the mandate is set to expire.
“The suggestion yesterday that I had made was that we'd come up with some type of strongly worded recommendation,” Ribaudo told the attorneys after they said they were at an impasse. “Is that sort of the general idea of what the parties have been discussing, or is it something different?”
The attorneys told the judge they had numerous discussions but were not optimistic about coming to an agreement.
“Let me make sure I'm understanding,” Ribaudo said during the 15-minute hearing. “You don't think the parties can come to terms on whether or not a strongly worded recommendation that people should wear masks, based upon the current set of numbers with regards to the Covid virus, specifically the delta variant, that's just not something that the parties can agree to?”
Both attorneys agreed with the judge’s sentiment but pointed out vast differences on their positions.
“I don't want to delve too much into settlement communications, but it would really have to be a recommendation from our perspective, not a continued promulgation of what we view as an unlawful order with limitations on enforcing them,” Sauer said. “I think that really is a major point of impasse.”
Perryman added, “We're ships passing in the night...I'm not even sure how we can bridge that gap.”
The attorneys agreed to keep trying to find a resolution at the judge’s stern urging.
“We're not just talking about money or plans for infrastructure,” Ribaudo said. “We're talking about human lives. You can't tell me that that isn't worthy of further conversation."
Tuesday’s proceedings came after a 90-minute hearing on Monday, which concluded with Ribaudo giving both sides an extra day to work out a compromise.
“It would behoove, I believe, not just both sides of this case, but every citizen of the state of Missouri, as well as every resident of St. Louis County, for the two of you, with the proper authority, to sit down and have a discussion about what it is that could be done in this set of circumstances, to try to avoid people getting sick and dying,” Ribaudo told the lawyers on Tuesday. “Because we've all agreed that this is not a fake scenario. This is real. The numbers are increasing. The risk is increasing.”
Sauer began that hearing by saying the arguments that led to Ribaudo issuing the TRO against the mask mandate on Aug. 3 have not changed. He also dismissed what he characterized as “a flurry of constitutional challenges” as falling short because they were “all squarely foreclosed by governing authority.”
That governing authority is a new law, known as HB 271, 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.
Ribaudo peppered both attorneys with questions, which ultimately led to her decision to allow the attorneys another day to come to an agreement.
She questioned Sauer’s argument against the mask mandate, in which he indicated that such an order would restrict the public’s ability to go to certain places, by flipping it and asking Sauer about the restrictions people who are concerned about contracting the virus face without a mask mandate.
Sauer answered that the state was not defending whether a mask mandate is good or bad policy, just that the mandate is unlawful under HB 271.
“The issue that I have, though, is that when we discussed this case two weeks ago, and when I issued my order, I made it very clear that this pandemic is real,” Ribaudo said. “I understand that some people don't believe that it is real, but it is real. People are getting sick. People are dying. And we're arguing politics and law.”
St. Louis County Executive Sam Page and St. Louis City Mayor Tishaura Jones, both Democrats, enacted a second mask mandate on July 26 as Covid-19 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 Page’s order did not comply with HB 271.
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.
Ribaudo granted a temporary restraining order two weeks ago, stating 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.
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.
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.
Spring Schmidt, the deputy director of the St. Louis County Department of Health, announced on Wednesday morning that the county is averaging 283 new cases a day and that it was averaging 171.3 cases for every 100,000 residents over the last seven days, putting the state’s largest county firmly in the red zone for rate of transmission. One of five of those cases involved a child under 18.
Schmitt claims in his lawsuit that 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. He also says 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.
The attorney general has also filed a similar lawsuit against Kansas City in Jackson County Circuit Court challenging that city’s masking order.
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