One mask lawsuit dropped, another dismissed, appealed

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A Morris County judge has dismissed a lawsuit that challenged a mask mandate in a county health order as overly broad under the state’s new emergency management law.

Eighth District Judge Ben Sexton dismissed the lawsuit brought by a Council Grove man and former Marine who believed in “personal freedom and choice.”

Sexton dismissed the lawsuit, ruling that the health order requiring masks was narrowly tailored to curb the spread of COVID-19.

The Morris County health order requires all businesses and organizations to mandate masks for all customers, employees and visitors inside public spaces.

The Morris County mandate also requires masks for outdoor public spaces when social distancing can’t be accomplished.

The health order is to “remain in effect until rescinded by the Morris County health officer,” which the lawsuit said created a mask mandate with no foreseeable expiration and “which potentially continues perpetually.”

The lawsuit brought by Neil Litke sought to narrow the window for the health order to 30 days so it would be reviewed monthly to account for changing health conditions.

“Litke does not provide any suggestive language on how the order needs to be narrowed, only broad conclusions,” Sexton found in his opinion.

“Litke failed to prove that the mask order is not narrowly tailored,” he wrote

Litke had argued that the lack of an expiration date proved that it was not narrowly tailored. However, Sexton said the law exempted mask orders from an expiration date.

The county health officer testified that setting an expiration date was arbitrary with reviewing trends in COVID-19 cases, positive test numbers, hospitalization numbers and available bed space.

“It is a fluid situation that needs to be monitored,” the judge wrote.

The court agreed with the county health officer that common sense should be applied to the health order and that it didn’t stop Litke from undertaking activities such as shopping or watching his kids play sports.

The lawyer for Litke, Ryan Kriegshauser, has already filed a notice to appeal.

“This is nowhere near close to strict scrutiny,” he said of the standard that should be applied to the health order under state law.

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 claims the mask mandate interferes 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.

The Johnson County lawsuit got caught up in a controversy over an anti-masking group called Mask Choice 4 Kids.

The controversy led to the resignation of a CEO from an Overland Park company that provides traveling nurses to hospitals struggling with staffing shortages because of the pandemic.

KCUR reported that the CEO’s son, Jacob Cleary, had formed Mask Choice 4 Kids, which has had signs cropping up across Johnson County.

The group encouraged students to fight mask mandates and sold merchandise to promote its cause.

A story published by KCUR suggested that the CEO – Brian Cleary – and his daughter were the plaintiffs in the lawsuit.

The initials B.C. were listed as the parent of the student in the lawsuit.

Kriegshauser issued a statement addressing the lawsuit that was dropped without going into any of the details raised in the KCUR story.

“In coordination with the plaintiff’s parents, we have decided that dismissal of this case is ultimately in the best interest of their minor child given the risk of being subjected to vitriol, rumors, and innuendo from bad actors…

“It is unfortunate that our society is quickly losing the ability to have civil conversations between groups with opposing viewpoints, even as we all try to strike an appropriate balance between protecting the public during a pandemic and maintaining our civil liberties,” he said.

“Unfortunately, as demonstrated by recent events in the press, there are individuals that wish to spew vitriol and hate in the face of even our reasonable position,” he said.

“We call upon the Johnson County Board of County Commissioners to do the right thing and amend its order to a reasonable length.”