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More lawsuits against Abbott’s ban on mask mandates

From Dallas County:

Dallas County Judge Clay Jenkins filed a legal challenge to Gov. Greg Abbott’s ban on local mask mandates Monday, the North Texas official said on Twitter.

Jenkins said he’s asking for a court to rule that Abbott’s prohibition on local officials requiring people to wear masks — part of the governor’s July 29 executive order regarding the pandemic — is unenforceable.

Jenkins filed his request as part of an ongoing lawsuit between himself and Dallas County Commissioner J.J. Koch, according to The Dallas Morning News. That paper, which first obtained a copy of the court filing, reported that Jenkins is asking to be allowed to require mask wearing.

[…]

“The enemy is the virus and we must all do all that we can to protect public health,” Jenkins said in a tweet late Monday. “School districts and government closest to the people should make decisions on how best to keep students and others safe.”

Koch sued Jenkins Thursday after the county judge ordered the commissioner to be removed from a public meeting where Jenkins mandated mask wearing, according to The News.

This joins the lawsuit filed in Travis County seeking a broader injunction against Abbott’s anti-mask order. Commissioner Koch was denied a temporary restraining order in his action against Judge Jenkins on the ground that being made to wear a mask did not cause him any injury; a hearing for an injunction is still to come. One can only hope it’s that easy for Jenkins in this litigation. The legal hair that is being split here, as far as my not-lawyer self can tell, is that while Abbott clearly has the power to impose a mask mandate during an emergency, the statute does not allow him to forbid other entities from imposing their own mandates. WFAA appears to confirm my guesses.

The court document cites the Disaster Act, which delegates authority to county judges to declare local disasters and to seek to mitigate the disaster. It says that the Delta variant is increasingly affecting the city.

It also mentions how Jenkins tried to require face masks in commissioners’ court but there were threats from Abbott and Attorney General Ken Paxton.

Last week, Dallas County Commissioner J.J. Koch was escorted out of the commissioner’s meeting after refusing to wear a face mask.

“Such injunctive relief is necessary because there is immediate and irreparable harm that will befall Dallas County – and others outside Dallas County – if they cannot require the public health-advancing mitigation measure of mandatory face coverings in public,” the court document says.

It also says that Abbott is attempting to prevent Jenkins from protecting citizens, which threatens lives.

“The Disaster Act does not provide any authority to the Governor to limit the local county judge’s actions,” the document says.

I figure there should be a quick ruling on whether there can be a temporary restraining order or not, and after that we’ll see. I don’t know the text of the statute in question, and I don’t know if coming from a county, which is essentially a subsidiary of the state, versus a home-rule city or school district or third party makes a difference.

In the meantime, Bexar County and San Antonio joined in the fun.

The city and county joined other governmental entities Tuesday in defying Gov. Greg Abbott’s July executive order prohibiting them from issuing mask mandates. This is not the first lawsuit over Abbott’s order; Dallas County sued on Monday night. Dallas Independent School District and Austin Independent School District also announced Monday that they would be requiring masks in schools despite Abbott’s executive order.

Mayor Ron Nirenberg said that the lawsuit was to challenge Abbott’s authority to suspend local emergency orders during the pandemic. Find a copy of the lawsuit here.

“Ironically, the governor is taking a state law meant to facilitate local action during an emergency and using it to prohibit local response to the emergency that he himself declared,” he said in a news release.

A temporary restraining order is necessary as San Antonio and Bexar County face “imminent irreparable harm,” from transmission of the coronavirus, plaintiffs wrote.

If the city and county are able to secure a temporary restraining order against the governor, the San Antonio Metropolitan Health District intends to immediately require masks in public schools and unvaccinated students to quarantine if they come in “close contact” with someone that tested positive for COVID-19.

[…]

The city and county argued in its filing that Abbott exceeded his authority, as Texas law “gives the governor authority to suspend statutes and regulations governing state officials and agencies, but not the statutes giving local governments the authority to manage public health within their own jurisdictions,” city and county representatives wrote in the lawsuit filed Tuesday. Bexar County Judge Nelson Wolff reiterated that point during a county commissioners meeting Tuesday morning.

And just like that

A Texas district judge granted the city of San Antonio and Bexar County a temporary restraining order, blocking Gov. Greg Abbott’s restriction on localities imposing mask mandates.

On Tuesday, Judge Antonia Arteaga made the ruling following almost an hour of arguments from attorneys. Arteaga said she did not take her decision lightly, citing the start of the school year and public guidance given by Dr. Junda Woo, medical director of San Antonio’s Metropolitan Health District, concerning the need for masks in public schools as the highly contagious delta variant contributes to a surge in coronavirus cases across the state.

The decision is temporary, pending a hearing on Monday.

We’re a long way from actual victory here – even if the plaintiffs win on Monday, we all know the state will appeal, and who knows what happens from there. The legal argument sounds reasonable to me, but what matters is what the law says, and whether the appeals courts/Supreme Court want to find a way to accommodate Abbott regardless of what the law says. But at least we’re off to a good start.

UPDATE: Score one for Dallas, too.

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3 Comments

  1. Kibitzer Curiae says:

    A WORTHWHILE READ …

    Kuff: I posted a link to the temporary restraining order in the Dallas case last night.

    Here it is again: https://www.aldouslaw.com/documents/TRO.pdf

    Also … temporary restraining orders cannot be appealed. Well, you can try, and the purproted appeal will then be dismissed as Warren Norred (the lawyer who also represents Koch against Judge Jenkins in the current mask-order litigation) found out in the City of Dallas v. Salon a la Mode and Shelly Luther case last year. See No. 05-20-00502-CV.

    So, whoever is being restrained by a TRO – here Abbott himself after having been added as a defendant by County Judge Jenkins – then has to file a petition for writ of mandamus against the judge if they are dissatisfied with the outcome in the first round.

    That’s what Paxton did in the case in Austin that freed the Lege-Democrats from the threat of arrest for breaking quorum. In that case, the SCOTX immediately stayed the TRO, and did so without comment. Otherwise, a TRO lasts for 14 days unlesss it is superseded by a subsequent order by the trial judge before or when that time is up. The second order can be an extension of the TRO, a rescission/withdrawal of the TRO, or a temporary injunction order. It can, and often is, signed a different judge than the original TRO. Temporary injunction orders can be appealed immediately and typically stay in effect until trial/final judgment or other case termination (such as nonsuit or agreed final judgment or dismissal), although an automatic stay applies in some appeals. But they can also be modified in the course of litigation unless an automatics stay is in effect or a stay order has been issued by an appellate court.

    In Koch v. Jenkins v. Abbott, a rather substantial hearing took place at the TRO stage (in contrast to the Dem arrest case, in which a TRO was granted ex parte), and the resulting order is more elaborate than run-of-the mill.

    Next comes a full-fledged evidentiary hearing on Jenkins’ application for temporary injunction, but we will have to see whether Paxton files a mandamus and/or tries to get the case dismissed on the ground that the governor is immune and/or not a proper defendant. One of the lawyers at the TRO hearing already made such noises even though the AG intervened in the pending laswuit and thus became a party, albeit in the name of The State of Texas, rather than on behalf of the Governor.

  2. Kibitzer Curiae says:

    COVID-Pomoters-in-Chief Doing Their Thing – Jenkins v. Abbott Case Update

    Texas Tribune reports that Texas Gov. Greg Abbott asks appeals court to strike down Dallas County mask mandate.

    Kibitzer previously posted the Dallas TRO. Here is the very impressive pleading filed on behalf of Judge Jenkins (with lots of epidemiological evidence attached at the bottom, including disease trajectory graphs), requesting that Abbott be enjoined by TRO first, then Temporary and Permanent injunction.

    https://www.dallascounty.org/Assets/uploads/docs/covid-19/press-releases/2021/august/080921-Final-Jenkins-v-Koch-Supplemental-Counterclaim.pdf

    Abbott and Paxton are apparently seeking relief in the Dallas Court of Appeals first, rather than going straight to the SCOTX.

    TEXT OF PRESS RELEASE VERBATIM:

    Governor Abbott, Attorney General Paxton Aligned in Defense of Executive Order Prohibiting Mask Mandates
    August 11, 2021 | Austin, Texas | Press Release

    Governor Greg Abbott and Attorney General Ken Paxton today announced the filing of a mandamus petition in the 5th Court of Appeals to strike down the actions by Dallas County Judge Clay Jenkins. The judge’s order violates Executive Order GA-38 and state law. GA-38 prohibits governmental entities and officials from mandating face coverings. It has the force and effect of state law and supersedes local rules and regulations.

    The Texas Disaster Act clearly states that the Governor has the power to guide the state through emergencies, such as the COVID-19 pandemic. Any school district, public university, or local government official that decides to defy the order will be taken to court.

    “Under Executive Order GA-38, no governmental entity can require or mandate the wearing of masks,” said Governor Abbott. “The path forward relies on personal responsibility—not government mandates. The State of Texas will continue to vigorously fight the temporary restraining order to protect the rights and freedoms of all Texans.”

    “This isn’t the first time we have dealt with activist characters. It’s deja vu all over again,” Attorney General Paxton said. “Attention-grabbing judges and mayors have defied executive orders before, when the pandemic first started, and the courts ruled on our side – the law. I’m confident the outcomes to any suits will side with liberty and individual choice, not mandates and government overreach.”

  3. […] is basically the argument that have been made so far in the various lawsuits filed so far challenging the mandate ban in the executive order, as well as my own […]