Missouri Supreme Court unanimously rules lower court erred in pandemic ruling

The Missouri Supreme Court unanimously ruled two counties and two county public health departments had the right to appeal a pandemic-related order by a circuit court.

In the 16-page opinion, Judge Patricia Breckenridge wrote on behalf of all six justices. She wrote Cole County Circuit Court Judge Daniel Green mistakenly overruled motions by St. Louis and Jackson counties and the Livingston and Jefferson county health departments to appeal his ruling on Nov. 22, 2021. Judge Breckenridge ordered the circuit court to allow the motion to intervene and for the court to enter an amended judgment against the Missouri Department of Health and Senior Services and the counties.

Judge Green ruled local health departments can’t issue orders, close businesses, quarantine students and stated Missouri’s Code of State Regulations pertaining to health orders violated the state constitution. The ruling was from a December 2020 lawsuit filed by Shannon Robinson against the state's health department.

Republican Attorney General Eric Schmitt, now a U.S. senator, then threatened legal action against all public school districts and health departments if they didn’t obey Green’s ruling. Schmitt also said he would not appeal the ruling against the Department of Health and Senior Services. A lawsuit later found Schmitt had no legal authority to stop school districts from enforcing mask orders.

On Dec. 2, 2021, Schmitt announced he wouldn’t appeal the ruling against the department. When St. Louis, Jackson Cooper and Livingston counties appealed on Dec. 13, 2021, Judge Green denied the request.

“Chaos was raining across the state,” Neal Perryman, representing the counties, stated before the Supreme Court. “Nobody knew what their powers were anymore.”

Judge Breckenridge wrote the existing parties in the lawsuit won’t be “prejudiced by intervention… The counties do not seek to inject new issues into the case.” She also wrote the counties had a legal right to intervene in the case.

“Because the circuit court’s judgment declares the DHSS regulations invalid and orders they be removed from the register, the counties cannot preserve the authority those regulations provide unless they intervene to appeal the judgment,” Judge Breckenridge wrote. “If intervention is denied, the counties lose and cannot regain their authority.”

During arguments before the Supreme Court, Robinson’s attorney, Kimberley Mathis, stated the counties watched the lawsuit from the sidelines and could have intervened with Judge Green before the ruling. However, Judge Breckenridge wrote the counties couldn’t have known Judge Green would toss the regulations and Schmitt’s subsequent refusal to appeal.

“Those suits did not challenge the validity of the DHSS regulations themselves,” Judge Breckenridge wrote. “… Therefore, as a matter of law, it would not be reasonable to hold the counties should have known the attorney general, in his capacity as counsel for DHSS, would not continue to defend the regulations on appeal.”

Judge George W. Draper III, who retired in early August, did not participate in the case.