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Missouri appeals court says Jackson County can't challenge ruling banning local COVID orders

 A woman enters J.A. Rogers Elementary on Jan. 12 where a sign reminds visitors they are required to wear masks in the building.
Carlos Moreno
KCUR 89.3
A woman enters J.A. Rogers Elementary on Jan. 12 where a sign reminds visitors they are required to wear masks in the building.

Jackson County has lost its bid to appeal a case in which a Cole County judge struck down COVID-19 restrictions issued by local public health departments.

The Missouri Court of Appeals ruled on Tuesday that Jackson County should have sought to intervene in the case earlier and not after Missouri Attorney General Eric Schmitt declined to appeal the Cole County judge’s decision.

Jackson County had argued that it was not until Schmitt declined to appeal that it became aware he was no longer representing the Missouri Department of Health and Senior Services (DHSS).

But the appeals court said the case had been pending for 11 months before Cole County Circuit Judge Daniel Green issued his ruling and was well publicized. And it noted that Jackson County stated in its own motion to intervene that Schmitt had filed numerous lawsuits against local governments and schools challenging their public health measures before he declined to appeal Green’s ruling.

“It seems disingenuous to argue that intervention must be allowed after judgment because Missouri Attorney General Schmitt unexpectedly declined to appeal the judgment,” the appeals court stated.

Attorneys for Jackson county could not be reached for comment. Doug Moore, a spokesman for St. Louis County, which also sought to intervene in the case, said, "The county is disappointed in the court's ruling and our attorneys are reviewing options to seek further review."

The Cole County case was filed in 2020 by a St. Louis County restaurant owner amid controversial shutdowns of restaurants and other public spaces in St. Louis and Kansas City. The suit alleged that regulations issued by DHSS unconstitutionally authorized local health departments to issue public health orders, such as quarantines and mask mandates, to curb the spread of COVID-19.

In November 2021, Green ruled in favor of the owner of the restaurant, Satchmo’s Bar and Grill, finding that local health departments’ pandemic-related orders violated the Missouri Constitution’s separation of powers provision.

“This case is about whether Missouri’s Department of Health and Senior Services regulations 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.”

After Schmitt declined to appeal Green’s ruling, Jackson County and St. Louis County jointly moved to intervene. They were later followed by the Cooper County Public Health Center, the Livingston County Health Center and the Jefferson County Health Center. All of them argued that Schmitt’s refusal to appeal was contrary to the wishes of DHSS.

Schmitt opposed the intervention motions, arguing that he had the exclusive authority to determine whether to appeal a judgment and that Jackson County and the other parties seeking to intervene were trying to circumvent his authority.

The appeals court’s decision means that Green’s ruling remains the operative case law on the subject, unless the Legislature explicitly empowers DHSS to authorize local health departments to issue pandemic-related restrictions.

Copyright 2022 KCUR 89.3. To see more, visit KCUR 89.3.

Dan was born in Brooklyn, N.Y. and moved to Kansas City with his family when he was eight years old. He majored in philosophy at Washington University in St. Louis and holds law and journalism degrees from Boston University. He has been an avid public radio listener for as long as he can remember – which these days isn’t very long… Dan has been a two-time finalist in The Gerald Loeb Awards for Distinguished Business and Financial Journalism, and has won multiple regional awards for his legal and health care coverage. Dan doesn't have any hobbies as such, but devours one to three books a week, assiduously works The New York Times Crossword puzzle Thursdays through Sundays and, for physical exercise, tries to get in a couple of rounds of racquetball per week.