Boone County Circuit Judge Brouck Jacobs, center, listens to opening statements September 28, 2021, as Solicitor General John Sauer argues for an order blocking mask rules in public schools (Pool photo by Don Shrubshell, Columbia Daily Tribune).
Face masks will stay on for students and teachers in districts requiring them, a Boone County judge ruled Tuesday, handing Attorney General Eric Schmitt a defeat in his efforts to use the courts to block mask mandates.
Circuit Judge Brouck Jacobs denied Schmitt’s effort to use a single case, filed against Columbia Public Schools, to determine whether any district in the state can require face masks to control the spread of COVID-19 in its buildings.
Jacobs refused Schmitt’s request for class-action status, denied a motion for a preliminary injunction and also turned down the Columbia school district’s effort to dismiss the case.
The result is that if Schmitt wants to challenge school mask rules, he will have to do so with individual cases against every district requiring them.
“The narrower route would be for you to pursue it in those districts,” Jacobs said.
The attorney general’s office, in a statement issued early Tuesday afternoon, found a victory in Jacobs’ decision not to dismiss the case.
Spokesman Chris Nuelle said “this fight is far from over.” He cast Jacobs’ decision not to dismiss the case as “crucial” and evidence that the court ruled that schools fall under a new state law limiting the breadth and duration of public health orders.
“We plan to aggressively pursue discovery in this case to show how bureaucrats have incessantly moved the goalposts to justify never ending restrictions and mask mandates — the people of this state have had enough, and we plan to continue to seek answers,” he said.
The district also found a victory in the ruling. Spokeswoman Michelle Baumstark said Columbia schools are “thrilled” with Tuesday’s outcome.
Jacobs’ ruling signified he agreed with the district’s arguments that the attorney general’s office does not have the authority to enjoin all school districts for their individual decisions on mitigation measures in a single action.
“Today is a good day for Missouri,” Baumstark said in a statement.
The hearing in Columbia, which spanned nearly three hours, centered on whether school districts are subject to a new state law which limits the authority and scope of public health orders aimed at curbing the spread of a contagious disease.
Although he lost on the injunction applicable to every district, John Sauer, solicitor general, said the state will try again by seeking a preliminary injunction solely against Columbia schools.
“That’s something I will hear you all out on,” Jacobs said.
The district’s COVID-19 mitigation plan, including the mask rules, is not subject to the new state law, Natalie Hoernschemeyer, of Mickes O’Toole law firm, said as she argued on behalf of Columbia schools.
The district’s authority is clear, she said. It can use mitigation measures to check the Delta variant’s spread, she said, and that the attorney general’s office lacks standing to pursue the case.
Hoernschemeyer said the district was not subject to the new state law, in part, because schools are not “political subdivisions” under the law and that masking requirements are internal rules — and not public health orders for the general public.
“School districts do not issue public health orders,” Hoernschemeyer said. “They never have.”
Even if the district was subject to the new law, the district followed the statute’s requirements, said Grant Wiens, also with Mickes O’Toole law firm.
Wiens outlined the various votes the Columbia Board of Education took to approve the district’s COVID-19 plan — which the attorney general’s office argued did not meet the 30-day timeline to renew mitigation measures under the law.
“You can’t extend something that’s already expired,” Sauer said.
Sauer also pushed back on the district’s other arguments, saying it was clear that issuing face mask requirements constitutes an “order.”
Sauer said the law doesn’t prevent mask mandates in schools, but merely establishes a process they must be implemented under.
“If you want to mask 19,000 school children,” he said, “you just got to go through this process.”
Denial of class action
Almost half the court time Tuesday morning was consumed by arguments over whether the suit could be used as a class-action to obtain an injunction against all districts with mask rules.
A single case would establish uniform enforcement of the law across the state, Sauer argued. Allowing the case to move forward against Columbia Public Schools, he said, shows the state’s case has merit.
To speed the case, Sauer urged Jacobs to certify the class and allow the case to continue without standard opt-out rules that allow class members to pursue their own litigation outside the main case.
Wiens, however, said that each district comes to its decisions on whether to issue mitigation requirements individually, and as a result each would need the ability to opt in or out of representing itself in a class action lawsuit in order to speak to those unique circumstances.
Sauer argued individual lawsuits would lead to “a patchwork of various standards” when enforcing the law and that districts have had notice they must comply with it since it went into effect June 15.
Jacobs also denied the ACLU of Missouri’s motion to intervene on behalf of children with disabilities that the advocacy organization argued are not adequately represented in the case.
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