Judge denies injunction on Omaha mask mandate

OMAHA, Neb. (WOWT) - The Omaha mask mandate will remain in effect for now.

Judge Shelly Stratman ruled Tuesday against the state’s motion to declare an injunction, allowing the city’s mask mandate to continue as the case progresses.

“A temporary injunction is only an interim measure while litigation continues. An order on a temporary injunction is not a final determination of the case,” she said in the conclusion of her order.

The proposed injunction was brought before the Douglas County District Court judge on Monday morning — 12 days after the mandate went into effect, at 12:01 a.m. Jan. 12. The state was trying to block the mandate while the legalities of the mandate are sorted out.

For nearly two hours on Monday, 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.

The judge noted in her decision Tuesday that the case centers on a debate about whether the city or the state has the power to enact public health measures within Omaha. Judge Stratman said she couldn’t find evidence of such irreparable harm done to the rule of law by keeping the mask mandate in place while the case moves forward, so the injunction wasn’t issued.

“While this matter is a weighty one, it is not simple. There are no previous cases analyzing the statutes and ordinances involved in this context. In the span of one and a half weeks, five separate groups of attorneys have provided the Court with 50 exhibits in support of their varied positions and approximately 144 pages of written argument. The argument provided to the Court is scholarly but divergent; there is not one clear interpretation of these provisions. This is a case which has been argued with great scholarship and integrity. After all of the foregoing analysis, the Court is left with the plain text of Omaha Municipal Code § 12:21 which requires that “[t]he health director shall take all measures necessary to prevent the introduction within the city of malignant, contagious and infectious diseases, and to remove, quarantine or otherwise dispose of any person or persons attacked or having any such disease. This plain text appears, at least at this stage, to support the authority Defendants assert Dr. Huse possesses. For all of these issues, the pending declaratory judgment action offers an adequate remedy at law.

In making this difficult decision, the Court takes into consideration the fact that even as litigation progresses, Intervenors, as members of the City Council, maintain legislative power. The City Council retains the power to alter or amend the ordinances in Chapter 12, or to issue an ordinance nullifying Dr. Huse’s current mask requirement. Likewise, the Nebraska Legislature retains legislative power to clarify or modify the delegation of public health power between cities and the Nebraska Department of Health and Human Services.”

Dr. Huse said she was pleased with the decision.

“We felt we were on solid legal ground,” she said in a statement Tuesday afternoon. “...The Health Department has and will continue to work tirelessly in this battle against COVID-19, and we hope that with everyone’s cooperation we can soon return to normal.”

The health director said she would re-evaluate the mandate four weeks after it went into effect — that’s two weeks from Wednesday — and focus on the data, which she said would be a condition for rolling the mandate back.

But there’s one stat that’s not even close right now.

One of the goals to end the Omaha mask mandate was to get the seven-day average of positive cases down to 200 per 100,000 population or lower. Right now, the city is at 1,486.5 cases per 100,000 people — well off the mark. According to the health department’s COVID-19 dashboard, the last time the county reported a seven-day average below 200 cases per 100,000 people was in late October/early November.

The other data benchmark is a bit closer: the goal is 85% hospital capacity. Currently, area hospitals are at 84% capacity, and experts caution that hospitalizations often lag behind increases in case numbers.

Just Stratman wrote that while the issue is a complicated one, the city code allowing “a health director for take measures when there’s infectious diseases” was the piece that kept her from stopping the mask mandate right now.

“In order to get a temporary injunction, you basically have to show it’s a slam dunk as far as the likelihood for success down the road and some irreparable injury — and both of these are hard to figure out in this case,” said Anthony Shutz, who teaches at UNL’s College of Law.

He said that while the temporary injunction from the Attorney General was denied, it’s still not clear who may prevail in the end as the lawsuit works through the courts.

“It’s a complicated legal issue trying to figure out the extent of state versus local power, and it’s complicated by what we call a delegation of authority between someone in county government who is being used by city government,” he said.

Nebraska’s Attorney General disagreed with the decision and said he believes his argument — that Dr. Huse does not have the power to single-handedly issue the mask mandate — will ultimately prevail.

The judge also noted Tuesday that there are legislators — the city council or the Unicameral — who could always clarify this debate.

Read Tuesday’s ruling

Previous legal filings

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