Attorney and state Rep. Mary Elizabeth Coleman has filed a lawsuit against the Jefferson County Health Department on behalf of two parents who say their children have been denied access to free education because of orders and guidance the agency has issued to stem the spread of COVID-19.
Shannon Otto of Arnold and Lori Bourgeois of Dittmer are the plaintiffs in the case, which was filed on Oct. 8 in the Jefferson County Circuit Court.
Both Otto and Bourgeois claim in the suit that their children were kept out of school because of quarantine orders or face mask recommendations the Health Department has issued.
The suit asks the court to issue a temporary restraining order and preliminary injunction to stop the Health Department from requiring the parents, their children and their children’s schools from following quarantine and mask orders and recommendations.
“Defendant (Health Department) has been lawlessly imposing its agents’ own ideas for fighting COVID-19 without going through the proper channels established by the (Missouri) Legislature,” according to the lawsuit. “This court can easily remedy that lawlessness by requiring the defendant’s policies to be approved by an elected body before they continue to be enforced.”
The Health Department issued a statement on Oct. 18 saying it would not comment on the lawsuit “in order to protect the integrity of the judicial process.”
According to the statement, the Health Department plans to defend the agency in the suit, but its insurance policy will not cover the cost of the defense.
Health Department attorney Christi Coleman of the Sandberg Phoenix law firm said the agency’s insurance policy does not cover costs related to temporary restraining order and preliminary injunction suits. She said it is “not unusual” for municipal organizations to not have coverage for injunctive relief legal fees.
The department’s insurance plan does cover liability and cyber and information breach cases, she said.
Mary Elizabeth Coleman said Otto and Bourgeois are seeking the restraining order and injunction against the Health Department because they are concerned “the rule of law” is not being followed regarding COVID-19 orders and guidance.
“Even during an emergency, it’s very important to them to have their children have access to a free public education,” she said.
According to an affidavit, Bourgeois was notified on Aug. 31 that her daughter, a freshman at Grandview High School, needed to be quarantined because she had a possible exposure from a student who tested positive for COVID-19 on Aug. 27. Bourgeois picked up her daughter from school and was given information on Health Department letterhead, which stated her daughter would be quarantined until Sept. 2 if she had a lab-confirmed negative test or until Sept. 7 if she had no symptoms.
Bourgeois said her daughter was denied access to free education as a result of the quarantine order, according to the affidavit.
Bourgeois said she received an updated letter on Sept. 6 about her daughter’s quarantine based on new guidance from the Health Department, which four days earlier released “modified quarantine guidance” designed to keep more students in school. At the time, the Health Department reported that each school district had the authority to decide if it would follow the modified guidance the Health Department was recommending.
“JCHD (Jefferson County Health Department) only shares guidance from CDC (Centers for Disease Control and Prevention) and DHSS (Department of Health and Senior Services)/DESE (Department of Elementary and Secondary Education) as information with the schools,” Department Director Kelley Vollmar said. “DESE and DHSS issue their own guidance documents with best practices directly to the schools. We develop our recommendations and guidance based on the best practice guidance of these agencies and then share with schools.”
According to an affidavit, Otto enrolled her daughter in kindergarten at Simpson Elementary, which is part of the Fox C-6 School District, for the 2020-2021 school year. After that, however, Otto unenrolled her daughter because of mask and quarantine orders.
This year Otto’s daughter, a first-grader, is attending a private school, according to the affidavit. Otto went on to say in the affidavit that as a result of the orders, her daughter has been denied access to free education.
The lawsuit does not ask for a monetary award from the Health Department.
“The focus of the client right now is on holding accountable and following the law,” Mary Elizabeth Coleman said.
She said she hopes the case against the Health Department forces the agency to “follow the rule of law.”
Mary Elizabeth Coleman said the Health Department made “no attempt to even try and comply” with state, statutory and constitutional law while setting COVID-19 policies.
“I think it's really important to note that this is not about litigating COVID,” she said. “Is COVID real? Is it dangerous? There's no question that COVID is real. The question is, are the public entities that are charged with protecting the public health following state and constitutional law and our allegation is that they are not.”
On Oct. 13, Jefferson County Div. 4 Circuit Judge Brenda Stacey recused herself from hearing the case due to “unavailability,” and since then Div. 6 Circuit Judge Troy Cardona has been assigned to hear the case, according to court documents.
A hearing about the temporary restraining order has been scheduled for 1:30 p.m. Tuesday, Oct. 26.
In August 2020, the Health Department Board of Trustees passed a mask order ordinance, but revoked the ordinance less than 24 hours later after Mary Elizabeth Coleman wrote a letter to Vollmar questioning the process the agency used to pass the mask ordinance. Also in that letter, Mary Elizbeth Coleman said she planned to file a lawsuit over it, but the board revoked the order before she filed the suit.
No countywide mask order currently is in place, although the Health Department Board of Trustees, in conjunction with county officials, previously issued mask orders that applied to anyone in the county. However, there were no penalties for those who chose not to wear one.
Currently, a mask order is in place for those who visit a Health Department building, and both the Fox and the Dunklin school districts have indoor mask orders that their Boards of Education approved.