Missouri AG threatens to sue — again — if Jackson County reimposes its mask mandate
With one mask mandate-related lawsuit still pending, Missouri Attorney General Eric Schmitt on Friday threatened to sue Jackson County for a second time if it reimposes requirements on Monday that everyone 5 and older wear face coverings at indoor public settings.
“I urge you to stop imposing mask mandates, especially ones that make five-year-olds criminals,” Schmitt wrote in a letter to the nine members of the county legislature.
County Executive Frank White and the county health department proposed in a draft health order on Thursday that the mask requirement extend until Jan. 12, if approved by the legislature, due to the high prevalence of COVID-19 in the region, low vaccination rates “and the scientific evidence supporting the benefits of universal masking.”
Legislators Scott Burnett and Crystal Williams are sponsors of the resolution, whose fate was questionable even before Schmitt threatened court action.
State law requires governing bodies to approve health orders that restrict behavior after an initial 30 days. County legislators have voted repeatedly in support of a county mask order imposed in August, even after Schmitt sued to have it voided.
But that support ebbed a month ago when the legislature voted 5-4 on Nov. 12 to end the mask mandate 10 days ahead of schedule, despite knowing that federal guidelines suggested that it remain in place.
Schmitt did not wait to see if the politics on the legislature have changed before issuing his threat soon after the proposed health order was added to the legislature’s agenda.
Williams said the Republican AG’s reference to 5-year-olds facing criminal prosecution was not only untrue but outrageous hyperbole that she thinks might win votes in favor of a renewed mask mandate from a legislature made up of seven Democrats and two Republicans.
“I don’t think he realizes that when he writes garbage like that he’s doing himself no favors with Jackson County,” she said.
Beyond that, she said, spiking numbers of COVID-19 cases in the county might reverse the Nov. 12 outcome.
Schmitt said it would be illegal for Jackson County to reimpose a mask mandate in light of a recent court decision in Cole County. A judge there struck down regulations that give local health departments the power to issue quarantines and other public health orders, such as closing businesses.
“State law also prohibits reviving the illegal mask mandate,” Schmitt wrote. “Neither the (county) Charter nor state law permits you to issue an illegal order.”
But critics say Schmitt’s interpretation of state law is incorrect.
The Cole County judge’s ruling struck down swaths of state regulation that gave local health departments the ability to issue disease-control orders, calling them “naked lawmaking by bureaucrats.”
But it did not touch the power of elected local lawmakers to pass their own health measures. A new public health law passed by the Missouri General Assembly this year allows for county and city health departments to issue orders like mask mandates only if they are approved for 30 days at a time by local governing bodies — such as a county council.
Robert Gatter, a professor at the Center for Health Law Studies at St. Louis University, said Schmitt is ignoring both that statute and state law giving municipalities local control, in his threat to Jackson County.
“That statute was not mentioned whatsoever, nor was the Jackson County charter mentioned whatsoever, in the state court ruling,” he said. “Why are those things not still law?”
Local legislatures, Gatter said, can still enact mask mandates “the way they create anything, the way they create any local law.”
“There’s nothing the Missouri attorney general can do about it,” he said. “Unless we’re going to rewrite the Missouri constitution to say there shall no longer be cities.”
The legislature meets at 10 a.m. Monday at the downtown courthouse.
