Updated Aug. 15 with Missouri Supreme Court ruling
Two Missouri counties have won the right to defend state health regulations struck down by a Cole County judge in 2021.
In a unanimous ruling issued Tuesday, six judges on the state Supreme Court wrote that St. Louis and Jackson counties were harmed by the failure of then-Attorney General Eric Schmitt to appeal the ruling from Judge Daniel Green. The regulations, some of which had been around since the 1940s, had formed the basis for COVID-19 public health orders.
Tuesday’s ruling did not decide the validity of the regulations – just that the counties could defend them in court.
Our original story from July 12
The Missouri Supreme Court is considering a case that sharply curtailed the authority of local health officials to address public health emergencies.
The high court heard arguments in the case Wednesday, most of which focused on the right of local governments to appeal the case even though they were not a party to the initial lawsuit. The court will issue its ruling at a later date.
In December 2020, a group of St. Louis County residents and business owners upset with local COVID-related restrictions sued the Missouri Department of Health and Senior Services. They argued that the state regulations that the county was using to issue those restrictions were invalid.
One of the plaintiffs, Ben Brown, is now a Republican state senator from Washington, Missouri. He owns a restaurant, Satchmo’s, that had been affected by the stay-at-home orders and capacity restrictions.
Judge Daniel Green agreed and threw out the regulations in an opinion issued in November 2021. Then-Attorney General Eric Schmitt, at the time a candidate for U.S. Senate, did not appeal Green’s decision.
A group of local governments and public health officials, including St. Louis and Jackson counties, asked Green to allow them to join the case and defend the regulations. He declined, as did an appeals court. The Supreme Court agreed to take the case in January.
In briefs filed with the court, Kimberly Mathis, the attorney for those challenging the regulations, pointed out that the attorney general’s office is in charge of litigation strategy for the state and that the decision to appeal “certainly does not belong to attorney retained by a politically motivated county executive with excess federal ARPA funds and an unlimited budget,” a reference to Democrat Sam Page of St. Louis County.
Mathis also argued that the local governments waited too long to get involved in the case, as they were clearly paying attention from the beginning.
“Allowing an intervention for the purposes of appealing a judgment after the parties in interest [DHSS and those who challenged the regulations] made a decision to no longer pursue the case on appeal is prejudicial” to those parties, she wrote.
Neal Perryman, an attorney for the local governments, said it was true that his clients had been aware of the case from the beginning. But he said there was no need for them to try to get involved earlier because Schmitt’s office adequately defended the rules in Green’s courtroom and they expected the attorney general to appeal the ruling.
“I didn’t hear a single word from the state about whether these regulations are valid or not,” Perryman said. “This is the second time I’ve asked, ‘What’s your position?’ I think it’s really telling that we’re talking about whether someone can trust the attorney general.”
Maria Lanahan, who represented the attorney general, did not address the office’s decision to not appeal. But she agreed with the challengers that the local governments asked to become involved in the case too late.
“At the time of the intervention, the counties had both rescinded their mask mandates, and so they had no county laws that relied on the invalidated regulations,” she said.
Perryman said the invalidated regulations, some of which have been around since the 1940s, extend far beyond COVID-19 mandates.
“The state set up a system where this is fast action in local areas to deal with things like Ebola or Spanish flu,” he said. “Let’s hope we don’t have this again for 100 years.”
