Counties can’t intervene in case that struck COVID regulations, appeals court rules

The case stems from a ruling issued last year targeting health orders intended to mitigate the spread of COVID-19 that were issued unilaterally by local health officials

By: - September 13, 2022 10:32 am
COVID Testing

The five counties and health centers had urged the appeals court to not only let them join the case, but to also review Cole County Circuit Court Judge Daniel Green’s November ruling (Photo by Tessa Weinberg/Missouri Independent).

Five counties and health centers will not be permitted to intervene and appeal a ruling that struck down state regulations on the control of infectious diseases, a panel of judges on the Missouri Western District Court of Appeals ruled Tuesday.

A three-judge panel affirmed a lower court’s ruling that St. Louis County, Jackson County, the administrator of the Cooper County Public Health Center and board of trustees for the Livingston and Jefferson County Health Centers would not be allowed to intervene and pursue an appeal in the case that the counties said “would upend the existing public health framework in the State of Missouri.”

In Tuesday’s decision, the judges cast doubt on the counties’ claims that they didn’t seek to intervene until after a ruling was issued last November because they thought Missouri Attorney General Eric Schmitt would appeal the case on behalf of the state health department.

The ruling noted that the highly-publicized case had been pending for 11 months before a judgment was originally issued, and in Jackson and St. Louis counties’ motion to intervene, the counties themselves pointed to Schmitt’s lawsuits against local governments and schools’ mitigation measures, like mask mandates.

“In these cases, Attorney General Schmitt argued on behalf of the State of Missouri that some of the same parties who are now intervenors in the current case exceeded their authority with respect to mask mandates and the COVID-19 pandemic,” Judge Anthony Rex Gabbert wrote in Tuesday’s opinion. “It seems disingenuous to argue that intervention must be allowed after judgment because Attorney General Schmitt unexpectedly declined to appeal the judgment.”

St. Louis County spokesman Doug Moore and Stephen Jeffery, an attorney for the counties of Livingston and Cooper, both said Tuesday that they were disappointed in the ruling and assessing next steps and options to seek further review.

A spokesman for Schmitt and an attorney for Jefferson County declined to comment.

Representatives for Jackson County and St. Louis businesses that originally sued the state did not immediately respond to requests for comment Tuesday morning.

The five counties and health centers’ previous motion to intervene was denied last year, and they had urged the appeals court to not only let them join the case, but to also review Cole County Circuit Court Judge Daniel Green’s November ruling. The ruling issued last year struck down certain state health regulations and declared health orders intended to mitigate the spread of COVID-19 that were issued unilaterally by local health officials “null and void.”

In arguments late last month, the counties and health centers argued that they requested to join the case as soon as it became clear Schmitt’s office would not protect their interests, and that the ruling was impacting local officials’ authority to curb the spread of contagious diseases in their communities.

“We’re throwing the baby out with the bathwater here,” Neal Perryman, an attorney for St. Louis County said during arguments last month on behalf of the appellants.

Last year, Schmitt’s office declined to appeal the ruling despite a request to do so by the state health department. He sent school districts and local public health departments letters that threatened legal action if they failed to comply. In the face of confusion and little clarity from the state, local health departments ceased aspects of their COVID work and were uncertain as to the extent to which they could curb the spread of other infectious diseases more broadly.

Solicitor General John Sauer, who argued on behalf of the Department of Health and Senior Services last month, said the attorney general’s office has taken no position on the merits of the counties’ appeal, but argued that the attorney general has the exclusive authority to pursue appeals when the state is a party to a case.

Tuesday’s ruling did not address the issue of whether the counties would be usurping the attorney general’s authority, and said that regardless “substantial justice does not require intervention after judgment in this case.”

Kimberley Mathis, an attorney representing a restaurant, church and St. Louis area resident who originally challenged the state health regulations, argued last month that county health boards could still approve mitigation measures despite the Cole County judge’s ruling.

“The only thing this decision did is strike a state regulation that unlawfully authorized bureaucratic lawmaking and took that decision out of the hands of the elected officials,” Mathis said last month.

The appeals court also denied a motion by Mathis to dismiss the appeal.

This story has been updated since it was initially published to include additional comments.

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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.