Missouri judge blocks pandemic public health orders from state, local agencies

A judge Tuesday ruled local health departments cannot issue orders, close businesses, or quarantine students, ruling parts of Missouri’s Code of State Regulations pertaining to the Department of Health and Senior Services (DHSS) violated the state constitution.

In an 18-page judgment, Cole County Circuit Judge Daniel Green ruled in favor of Shannon Robinson, B&R STL and Church of the Word, who filed suit last December. They argued DHSS policies should not be able to “abolish representative government in the creation of public health laws” and “authorize closure of a school or assembly based on the unfettered opinion of an unelected official.”

“This was definitely a line in the sand that I felt needed to be drawn,” said Ben Brown, a plaintiff who’s running for the state Senate seat of Dave Schatz, R-Sullivan. “I understand the reason why you have to have some emergency powers in the case of a natural disaster or some imminent threat. I could see why you should have some laws allowing a period of time for taking quick actions. But when things were drawn out for this long and with the granting of this level of unchecked power, I saw the potential for abuse.”

Green ruled the Director of DHSS or director of a local health agency cannot implement discretionary “control measures” including the “creation and enforcement of orders” affecting individuals, schools, organizations, businesses and other entities. He stated “closing schools and places of public assembly based solely on his/her opinion” wasn’t valid. Green cited cases in Michigan, Wisconsin and Pennsylvania where judges reached similar conclusions regarding administrative orders created in connection with COVID-19.

Green said the plaintiffs provided “ample evidence” showing public health officials throughout the state used Missouri regulations to “exercise unbridled and unfettered personal authority to in effect, legislate.”

“Local health directors have created generally applicable orders, both in writing and verbally, requiring individuals within their jurisdictions to wear masks, limiting gathering sizes in peoples’ own homes, creating capacity restrictions, limiting usage of school and business facilities including tables, desks, and even lockers, mandating spacing between people, ordering students be excluded from school via quarantine and isolation rules created by health directors based on masking or other criteria not adequately set forth in either by the state legislature or by DHSS rules, among other generally applicable orders.”

Green said health directors are constitutionally prohibited from issuing rules prohibiting or requiring certain conduct and disciplinary consequences for violating the director’s rules.

“Yet, this has been happening across the state for over 18 months, thanks to unconstitutional language buried in state regulations,” Green wrote.

In addition to ruling various DHSS state regulations invalid, Green ordered the Missouri Secretary of State to remove them from the state register. Green ordered the DHSS to instruct local health officials to refrain from issuing verbal or written orders regarding circumstances where children can be excluded from school. He nullified all discretionary orders or rules, whether written or verbal, that close a business based on the opinion or discretion of an agency official.

Brown, who owns a restaurant in the St. Louis area, led a group of 40 restaurant owners and the Missouri Restaurant Association in an unsuccessful lawsuit to stop St. Louis County’s pandemic closing of restaurants last year. He remained resolute in challenging the length and manner of the restrictions. He learned a few weeks ago the judge was ruling in his favor and admitted it was difficult to keep it a secret.

“It became clear this wasn’t going to be gone after COVID was gone,” Brown said. “The term ‘public health emergency’ was going to equate with being an excuse to rein in people’s constitutional rights. I wondered what would be the next public health issue after COVID and where things would lead.”