Missouri’s largest counties seek to appeal ruling overturning local health orders

Jackson and St. Louis counties argue Attorney General Eric Schmitt’s refusal to appeal has created ‘chaos’ in public health

By: and - December 13, 2021 5:30 pm

Missouri Attorney General Eric Schmitt (photo courtesy of the Missouri Attorney General’s Office).

Jackson and St. Louis counties requested Monday that they be permitted to intervene and appeal a recent court ruling that they argue has “upended the longstanding public health framework” in Missouri.

In a filing submitted Monday afternoon and obtained by The Independent, the two counties asked Cole County Circuit Court Judge Daniel Green to stay his recent ruling while their request to appeal the decision or for a new trial is considered.

On Nov. 22, Green ruled that state regulations granting local health departments the power to issue COVID orders violated the Missouri Constitution. He declared orders issued unilaterally under the regulations “null and void.” 

Despite the state health department’s request to appeal Green’s ruling, Attorney General Eric Schmitt has refused, sending cease and desist letters and warning of future litigation if public health departments or school districts refuse to comply.

In their motion, Jackson and St. Louis counties described Schmitt’s actions as “a campaign of litigation terror,” and warned if Green’s ruling remains in place, “community spread of all communicable diseases will no doubt skyrocket in this State, while the mechanisms for combatting any such spread will have been dismantled.”

Since Green’s ruling, over a dozen public health departments have stopped aspects of their work to mitigate the spread of the coronavirus, including no longer issuing quarantines or notifying close contacts of their exposure, having limited ability to assist schools with contact tracing and in some cases no longer publicizing statistics on the number of COVID cases in their area.

Chris Nuelle, a spokesman for Schmitt, said Monday the counties’ efforts to intervene “are both late and meritless.” Green’s order is not final until Dec. 22, under the rules governing civil cases.

“Further, since St. Louis and Jackson County were not parties during the litigation, they have no authority to intervene and appeal,” Nuelle said. “We will continue to fight for the liberties of all six million Missourians.”

Citing Missouri Supreme Court rules, Jackson and St. Louis county argue they are entitled to intervene and appeal the case for several reasons, including that their interests were not adequately represented by the existing parties in the lawsuit and the ruling “impedes their interests.”

The counties said they “cannot sit idly by.”

Neither county has a mask mandate in place. 

On Thursday, St. Louis County officials rescinded their face mask requirement, pointing to both Green’s ruling and the St. Louis County Council failing to vote to approve the mandate.  On Monday, Jackson County legislators voted 5-4 against requiring face masks through Jan. 12, citing the fact it would set them apart from most other areas nearby that did not require them, The Kansas City Star reported.

“Chaos now reigns in the state with respect to the administration of public health,” the motion from Jackson and St. Louis counties states. “Few public health officials, local government leaders, and school boards have any idea what they are legally permitted to do or are legally prohibited from doing.”

‘Worst case scenario’

Public health experts warn that the state’s ability to rein in contagious diseases more broadly is being put in jeopardy by Green’s ruling.

“This is the worst case scenario in terms of health departments — whose core function is to control communicable diseases — in general, aren’t doing that anymore,” said Lynelle Phillips, the president of the Missouri Immunization Coalition and vice president of the Missouri Public Health Association.

As of Monday morning, the state health department had still not provided local health agencies with guidance on how to interpret the ruling, according to a Bates County Health Center Facebook post

Therefore, the health department will stop notifying close contacts, will not be posting current COVID case numbers and deaths and will no longer issue letters for work or school absences, the health center wrote Monday.

A spokeswoman for the Department of Health and Senior Services did not immediately respond to a request for comment Monday.

The Bates County Health Center is one of a growing number of health departments that have taken a similar stance since Schmitt sent letters to public health departments and school districts last week.

“While our agency remains determined to protect the health of our county residents, it should be understood that this ruling greatly affects how we will be able to proceed and stop the spread of COVID” the McDonald County Health Department wrote in a Thursday Facebook post.

While the ruling may be a backlash to COVID restrictions, it has wide-reaching implications and will hinder health departments’ efforts to control communicable diseases, like measles, hepatitis A or Ebola — not just COVID, Phillips said.

“In a sense, Missouri is not a very safe place to live right now,” Phillips said, later adding: “We don’t want these diseases, but in Missouri somehow our communicable disease regulations that have been on the books, frankly, for centuries — back since yellow fever days — (were) declared unconstitutional, which is completely baffling.”

Chris Prener, an assistant professor of sociology at Saint Louis University who has been closely tracking and compiling data on the virus’ spread, said the confusion wrought by Green’s ruling feels like a setback for the state’s COVID response at a time when cases are rising to levels nearing last January’s post-holiday wave and the impact of the omicron variant’s presence in the state has yet to be known.

“The timing could not really be worse,” Prener said, later adding: “Also, we have this slowly shrinking pool of unvaccinated people that is made up of a lot of children.”

While the ruling’s impact is debated, Prener said ultimately he fears harm to public health departments’ credibility has already been done.

“Even if the ruling is stayed, there’s now a group of people who believe that something as simple as contact tracing is this inappropriate and unconstitutional infringement on their rights and that does a lot of damage,” Prener said. “That’s a place where we need unambiguous clarity, not just from judges, but from political leadership in Missouri that these steps are important.”

Asked about public health concerns, Nuelle reiterated that Green’s ruling requires health orders that are null and void under the judgment stop being enforced.

“If local public health authorities or school districts feel they need additional authority, the next legislative session starts in January,” Nuelle said.

As of last week, the attorney general’s office had sent letters ordering districts to cease and desist any mitigation measures to 33 school districts. Some districts have reversed course on mitigation measures after Schmitt’s recent demands. On Monday night, the Columbia Board of Education, who Schmitt has previously sued over its mask mandate, voted to end its masking requirement in district buildings once students return from winter break Jan. 4.

However, various districts have pushed back, pointing to a variety of state laws and in some instances local regulations that they said give them the authority to keep their COVID protocols in place.

Joseph Hatley, an attorney representing the Lee’s Summit R-7 School District, wrote in a Friday letter to Schmitt that his “recent letters not only lack legal effect—they are simply wrong.”

A copy of the letter, which was obtained by The Independent, was first reported Friday by the Lee’s Summit Tribune.

Hatley pointed to various provisions of state law that grant school boards the authority to set rules, noting that it does not depend on authority granted from the state or local health departments. He also cited another statute that makes it illegal for children to attend public school if they are infected with a contagious disease or may transmit it. Nuelle previously said districts “simply don’t have that power,” arguing too many districts have kept kids out of school.

“The Missouri Legislature has expressly granted local boards of education wide-ranging power to manage and govern their own affairs,” Hatley wrote, “power that you have no authority to intervene with.”

In response, Schmitt doubled down in a letter of his own on Monday, refuting the district’s interpretation of state statutes and instructing it to “come into compliance with state law immediately.”

This story has been updated since it was first published.

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Tessa Weinberg
Tessa Weinberg

Tessa Weinberg covered education, health care and the legislature with the Missouri Independent. She previously covered the Missouri statehouse for The Kansas City Star and The Columbia Missourian, where her reporting into social media use by the governor prompted an investigation by the Attorney General’s office. She also covered state government in Texas for The Fort Worth Star-Telegram.

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Rebecca Rivas
Rebecca Rivas

Rebecca Rivas covers civil rights, criminal justice and immigration. She has been reporting in Missouri since 2001, most recently as senior reporter and video producer at the St. Louis American, the nation's leading African-American newspaper.

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