Omaha mask mandate hearing: Judge hears arguments

OMAHA, Neb. (WOWT) - Twelve days after it went into effect, Omaha’s mask mandate had its first day in court.

The case was brought before Douglas County District Court Judge Shelly Stratman on Monday morning. The state was seeking a temporary injunction on the mandate — while the legalities of the mandate are sorted out — that went into effect at 12:01 a.m. Jan. 12, but no decision on the matter was made during the hearing.

Judge Stratman can issue the temporary injunction and stop the mask mandate in its place or she can allow it to continue as the case progresses. Either way, it seems certain the case will still end up at a trial. She said she expected to have a decision either by the end of the business day Monday or by no later than noon Tuesday. She also said she would take any proposed orders into consideration.

“I recognize the immediacy of what’s going on here,” she said.

Monday’s arguments

For nearly two hours, several attorneys presented their arguments over Zoom to the judge as to whether Douglas County Health Director Dr. Lindsay Huse had the power to issue a mask mandate for Omaha earlier this month.

The state argued that extraordinary damage would be done if the county health director would be allowed to have more power than she’s supposed to; Dr. Huse’s team questioned whether more harm would be done to the public by stopping the mask mandate during a health crisis.

ARGUMENTS FOR AN INJUNCTION: Among those saying Douglas County Health Director Dr. Lindsay Huse didn’t have the power to issue the mask order.

In presenting the state’s case, James Campbell of Nebraska Attorney General Doug Peterson’s office said Monday that Douglas County Health Director Dr. Lindsay Huse “acted without legal authority” and that the Omaha mask mandate is inflicting ongoing irreparable harm.

The state argued that Dr. Huse unilaterally issued the mandate without approval from the Nebraska Department of Health and Human Services, and that she exceeded her authority under local and state law.

Campbell argued that Dr. Huse isn’t a city official, but that if that’s the argument being made, then “she admits that she’s not giving her entire time to the duties of the county office.” She is between rock and hard place, he said, either acting as the Douglas County health director and is outside her authority, or she’s not doing her job as the city’s health director.

Arguing for an injunction, Campbell said the county struck the word “Omaha” when giving authority to county actors, therefore affirming the position was not a city actor. He said the ordinance cited mentions the “health director of Omaha” but that Dr. Huse is relying on a different provision and doesn’t cite the city in reference to “the health director.”

The AG’s team said that Dr. Huse was really acting as the Douglas County health director and that the position needs permission to issue a mandate — permission Dr. Huse did not get.

Campbell said it doesn’t make sense that anything the county decides regarding public health becomes delegated to the city, noting that it wouldn’t make sense for the health director to make decisions about Omaha’s public pools, for example.

Representing City Council members Brinker Harding, Aimee Melton, and Don Rowe, attorney David Lopez also argued that Omaha’s mask mandate exceeds Dr. Huse’s authority, noting that it not only sidesteps the authority of DHHS but also betrays the process the City Council went through to enact the mask ordinance in August 2020. Lopez argued that because the council heard hours of public input ahead of its vote to implement a mask ordinance, it was empowered by the public to act.

ARGUMENTS TO DENY THE INJUNCTION: Edward Fox, appearing on behalf of Dr. Huse, said that the city, in placing her in the position of a city health official, imposed a duty upon her to mitigate the effects of a pandemic.

Fox argued that the city abdicated its public health role to the Douglas County Board of Health and recognized the authority of the county health director, regardless of her title, thereby delegating that position as its own authority on health matters, particularly during a pandemic.

While the state argued that the specific ordinance the city is citing had been relinquished back to the county, Fox noted that Omaha’s health director was compelled to make reports to the City Council, and called on the court to “harmonize” city ordinances and state statutes whenever possible, but particularly when the harm of not acting supersedes the harm of acting.

Fox also took issue with the categorization of Dr. Huse as an “unelected bureaucrat” noting that she had sought advice from City Councilman Festersen and Chris Rodgers, president of the county board of health, in addition to relying on scientific facts and health data when making her decision.

“She is not acting pursuant to authority she gave herself,” he said, noting that the democratically elected City Council enacted the law specifically so that a person with knowledge of science would be empowered to make decisions pertaining to public health.

Fox also cited the UNMC decision to implement crisis standards of care as supportive of that decision, saying that if the state doesn’t want a metropolitan class city to have such authority, then the Legislature should write a law to that effect.

“It’s also been suggested that she is flouting the law when in fact, she’s made a careful and considered judgment with regards to decision-makers and the help of others — most importantly, with the help of science,” attorney Robert Slovak said.

Bernard in den Bosch, representing the City of Omaha, agreed that Dr. Huse was acting in the best interest of the city’s residents and within the power granted to her by the city’s charter.

Joshua Woolf, representing the Douglas County Board of Health officials named in the lawsuit, said the board should not have even be mentioned in the lawsuit. The director, not the board of health, has the power to enact a mandate, and

Woolf went on to argue that there was no conflict between the public health laws regarding the Douglas County health director’s authority to act in a city capacity.

Several arguing against the injunction said the City Council could have addressed the concern, and noted that the sunset provision of the City Council’s earlier ordinance granted the Douglas County health director the authority to call for a mask mandate in the future as needed.

Previous legal filings

In documents filed last week, the city’s lawyers argued that Omaha has broad authority to enact ordinances, rules, and regulations because it has a metropolitan classification, especially when it comes to the health of its residents. The city also argues that just because the City Council took previous action doesn’t mean the city health director cannot act now.

The state filed arguments last week stating that there was no example where Omaha’s health director had imposed an infectious disease control measure, arguing that was proof Dr. Huse doesn’t have that power. He said in a news conference last week that Dr. Huse created a “fictitious” city health director in order to get around state law.

But the city wrote that, based on the AG’s argument, “the health director retains the authority to do anything and everything to address a pandemic but could never impose a mask ordinance. This is an extremely tortured interpretation of the law of preclusion.”

Dr. Huse said she issued the temporary mandate as a response to rapidly increasing cases, in an effort to fight escalating hospitalizations. She told the board of commissioners that morning: “This is not a decision I made lightly, this is not an easy decision at all. I know it’s going to create some waves. But this is a tool we have in our toolbox. We have research, evidence out there showing that masks decrease transmission.”

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