Republican politicians Paul Berry, left, celebrates with Patricia and Mark McCloskey in front row

Republican politician Paul Berry, left, celebrates with Patricia and Mark McCloskey, who were also in the front row, after the St. Louis County Council's 5-2 vote to repeal the mask mandate during a council meeting on Tuesday, July 27, 2021, in Clayton. (Laurie Skrivan, Content Exchange

CLAYTON — A St. Louis County judge said Wednesday she soon would decide whether the county can immediately impose a countywide mask mandate, now that a County Council majority voiced support for extending the measure.

Circuit Judge Ellen “Nellie” Ribaudo said after a two-hour hearing she would rule “as quickly as possible” on the county’s request to lift her preliminary injunction blocking the public health order amid the coronavirus pandemic. The county also wants her to dismiss Missouri Attorney General Eric Schmitt’s lawsuit challenging the county order, which required masks in indoor public places and on public transportation for vaccinated and unvaccinated individuals 5 and older.

Schmitt sued to block the county’s order on July 26, the day it was issued. On July 27, the council voted 5-2 to rescind the mask mandate, and Schmitt obtained a temporary restraining order, citing the council’s action. On Aug. 19, Ribaudo issued a preliminary injunction.

But, after weeks of public testimony and criticism, two of the council members who’d voted to rescind the mask mandate — Democrats Rita Days and Shalonda Webb — joined on Aug. 27 with the council’s two other Democrats to support a resolution supporting a 30-day extension of the public health order. Shortly after the 4-0 vote, the county filed a motion to dissolve the injunction and asked Ribaudo for a hearing.

On Wednesday, Neal Perryman, a lawyer representing St. Louis County, said the resolution qualified as legislative approval for the public health order, effectively reversing the council’s July 27 vote and invalidating the legal basis for the restraining order. Perryman also asked Ribaudo to dismiss Schmitt’s lawsuit, arguing the suit asked the court to determine whether the mask order violated state law giving local politicians oversight of public health orders.

“There is no longer this conflict between the legislative branch and the executive branch,” Perryman said.

Missouri Solicitor General John Sauer argued that the July 26 mask order had been “permanently and indefinitely” terminated by both the council’s vote on July 27, and a stipulation in state law that local public health orders would expire after 30 days if they didn’t get approval from local legislative bodies.

“Once it is terminated, it cannot be extended,” Sauer said.

Sauer also argued the council resolution did not constitute a binding mask mandate, pointing to statements by four of the council’s seven members — three Republicans who abstained and Days — that the vote was meant to be symbolic only. Days, who had joined Republicans for weeks to reject bills that would have enacted mask mandates by county ordinance, said the resolution was “ceremonial” after she cast a deciding fourth vote.

In response, Perryman pointed to the actual text of the resolution, which “authorizes the extension” of the July 26 mask order and did not call the measure a recommendation or suggestion.

Sauer argued the court could not dismiss the case in its entirety because state still alleged the mask order puts unconstitutional restrictions on people, businesses and schools. Denying the state a chance to argue the case in court would mean “that a court can never check or engage in a judicial review of what Dr. Khan or the public health department can do.” Faisal Khan is the acting director of the county Department of Public Health.

Perryman said the mask order reflects Centers for Disease Control and Prevention guidelines aimed at slowing the spread of the coronavirus and ending the pandemic. If the court continued the case, Perryman said, then the court would be deciding a public health debate about the efficacy of mask orders.

“Is the court going to entertain an evidentiary hearing where you’re going to pit the CDC and scholarly journals about mask wearing vis-a-vis others and decide which one is right?” he asked.

Nassim Benchaabane • 314-340-8167

@NassimBnchabane on Twitter

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