Missouri judge tosses COVID-19 health orders, calling them ‘naked lawmaking by bureaucrats’

A Missouri judge has tossed out local health orders issued to slow the spread of COVID-19, in another restriction on the authority of public health officials this year.

Cole County Circuit Judge Daniel Green ruled Monday that the orders, derived from a state health department rule allowing local public health agencies to issue orders to control the spread of disease, were unconstitutional. Green said the department did not have the authority to “permit naked lawmaking by bureaucrats across Missouri.”

Many of these rules, such as mask mandates and business capacity restrictions, have already been lifted. But Green also barred health departments from making any future rules — including quarantine requirements for school children.

“This case is about whether Missouri’s Department of Health and Senior Services can abolish representative government in the creation of public health laws, and whether it can authorize closure of a school or assembly based on the unfettered opinion of an unelected official,” Green wrote. “This Court finds it cannot.”

Attorney General Eric Schmitt’s office, which represented the state, indicated that it will not appeal the decision. Schmitt, who is running for U.S. Senate, has sought to overturn mask mandates in Kansas City, St. Louis and local school districts.

“We’re aware of the Court’s ruling and are prepared to enforce compliance with the Court’s order across the state,” spokesman Chris Nuelle said.

Many of the rules Green struck down were already limited this year by passage of a new state law that requires local public health rules to be approved by governing bodies such as county councils.

The state’s new health director, Don Kauerauf, said earlier this year that law “haunts” him and that he worried about eroding trust in public health officials. DHSS did not immediately respond to a request for comment on the ruling.

Jackson County’s last COVID-19 health order, a mask mandate, was lifted by the county legislature this month. Spokeswoman Marshanna Smith said the county could not comment on whether the ruling would impact its response to COVID or future public health emergencies.

“We are aware of the Cole County Circuit Court’s decision and are reviewing it now,” she said.

The ruling came in a lawsuit brought against COVID-19 health orders last year by St. Louis-area resident Shannon Robinson, Church of the Word and Satchmo’s Bar and Grill, a Chesterfield restaurant that had fought St. Louis County’s indoor dining restrictions.

The Satchmo’s owner, Ben Brown, is now running for a state Senate seat.

Green wrote that state law only gives DHSS the authority to identify infectious diseases and issue rules to control their spread, not local departments. The department’s rules delegating power to local health agencies date back decades and cover numerous other infectious diseases.

Early in the pandemic last year, Gov. Mike Parson refused to issue statewide business restrictions or a mask order, deferring to local agencies to set their own COVID-19 response rules.

But Republican lawmakers, angry at the restrictions some counties set, passed the public health law this year, and Parson signed it in June, agreeing that “there’s freedoms that outweigh consequences.”