Douglas County mask mandate challenged in court

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A fourth lawsuit has been filed challenging a county’s mask mandate as overly broad under a new state emergency management law passed earlier this year.

Marie Taylor and her child – listed in court documents as a minor with the initials J.T. – are contesting Douglas County’s decision last month to require children ages 2 through 11 to wear a face covering when inside a public space, including schools.

The lawsuit argues that Taylor’s child cannot wear a mask without triggering severe anxiety, stress and a lack of concentration.

As a result, her child cannot receive special education speech services at Baldwin Elementary School while not wearing a mask due to the order, the suit claims.

“The petitioner is aggrieved by the order because he has been denied special education speech services as an enrolled student at Baldwin Elementary School due to the requirement that he wear a mask while receiving speech services,” the lawsuit states.

Like similar lawsuits brought by the same law firm, the litigation contends that the county health order is too broad because it extends three months.

The current order is effective from Sept. 23 until Dec. 22, encompassing the remainder of the fall school semester at Baldwin Elementary School.

A previous Douglas County public health order mandating masks for children
ages 2 to 11 was in effect from Aug. 19 to Sept. 22.

The lawsuit seeks a 30-day order, saying it’s a more narrowly tailored response to address the COVID-19 pandemic.

The lawsuit is the latest to have been filed since the state Supreme Court stayed a lower-court ruling throwing out the emergency management law passed this year.

Johnson County District Judge David Hauber ruled that the law passed last session deprives the government of due process while also violating the separation of powers between the judicial and legislative branches.

Attorney General Derek Schmidt has appealed the ruling to the state Supreme Court. Oral arguments in the case are scheduled for next week.

Hauber zeroed in on sections of the law that allowed Kansans to go to court to challenge health orders, which reemerged during the summer with a resurgence of COVID-19 cases.

The law says a judge “shall grant relief” unless the court finds that the health order was narrowly tailored to respond to an emergency in the least restrictive way possible.

In this case, the lawyer for the plaintiffs – Josh Ney – argued that the Douglas County mask mandate is not narrowly tailored because it is in place for more than 30 days.

A similar lawsuit brought against Morris County was dismissed by a judge last month.

Eighth District Judge Ben Sexton set aside the lawsuit, ruling that the health order requiring masks was narrowly tailored to curb the spread of COVID-19.

Meanwhile, a similar lawsuit brought against Johnson County has been dropped.

The lawsuit was brought on behalf of a Blue Valley middle school student – only identified in the court filing as M.M.C. – who claimed the mask mandate interfered with their learning ability, completing their class work or interacting with their friends.

The Johnson County lawsuit contended that the health order lasted 295 days and sought a more narrow time frame of 30 days so that it could be reviewed monthly by the Johnson County Commission as the health climate changes.

A fourth lawsuit, brought by a separate law firm, is still pending in Johnson County District Court.