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Are masking, school cases tip of the iceberg for COVID lawsuits?

Local suits will set state precedent, attorneys say

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A trio of new lawsuits related to the coronavirus pandemic will set a precedent, no matter their outcomes, local attorneys say.

Lawsuits are filed against the cities of Springfield and Branson, for their respective face mask ordinances, and against Springfield Public Schools, for its fall semester reopening plan.

The suits in Springfield and Branson seek a temporary restraining order and permanent injunction against the masking ordinance each municipality passed last month. They claim the mandate infringes on individuals’ right to privacy.

Resident Rachel Shelton is the plaintiff in the Springfield case. Business owners Jamie Hall and Bo Dejager, are plaintiffs in the Branson suit, which also alleges the law causes harm to the tourist city’s economy.

In the SPS case, plaintiffs Kristina Borishkevich, Erica Sweeney and Stoney McCleery allege the reentry plan violates constitutionally and federally protected rights.

Springfield attorney Kristi Fulnecky is representing the plaintiffs in all three cases.

None of the cases had been heard in court, as of press time, and the city of Springfield case has had four judges recuse themselves, according to online court records.

“Justice moves slow,” Fulnecky said. “We thought it was going to be a little faster with the temporary restraining order.”

All three cases have a time element, as the mask ordinance is in effect through Sept. 8 in Branson and through Oct. 14 in Springfield. The municipalities can vote to extend the mandates. Additionally, the 2020-21 SPS school year begins Aug. 24.

Springfield’s law took effect July 16 after City Council unanimously approved the ordinance requiring face coverings to be worn in public places within city limits. The Branson Board of Aldermen passed a similar measure 4-1 July 28. In both cases, the municipality and all the council members who voted in favor of the ordinance are named.

The lawsuit against SPS seeks injunctive relief against the reopening plan, which Fulnecky claims denies “equal access to education” for some students. It asks for the school district to provide in-person classes five days a week. Under the SPS plan, children will attend classrooms for two days a week with virtual learning for the remaining three days or receive virtual learning full time. The suit names the SPS Board of Education and its members, as well as Superintendent John Jungmann, as defendants.

Ransom Ellis, the attorney for SPS, said in a statement the lawsuit “does not provide practical solutions to address the unique and significant challenges faced by the school district and the community.”

“SPS is offering as much choice to students and parents as possible, with the promise that the district will reevaluate the ability to increase the number of in-person days in the classroom at the end of the first quarter,” he said in the statement. “The decision will be based on health data that tracks the local progression of the pandemic and its effect on the school environment.”

Meanwhile, confirmed cases of COVID-19 continue to climb, according to the Springfield-Greene County Health Department. Health officials Aug. 12 announced 95 new COVID-19 cases – a one-day record – bringing the cumulative number of confirmed cases to 1,784 in the county.

Constitutional concerns
Fulnecky said the intent for both face mask lawsuits is to declare the mandates unconstitutional.

“Our argument on the mask mandates is that there’s a right to privacy,” she said. “It’s someone’s health and their body, and you can’t make them wear a mask. We’re also saying that the ordinances are vague and overbroad.”

Cora Scott, city of Springfield spokesperson, said the city has no comment on the lawsuit. Springfield City Attorney Rhonda Lewsader has filed a motion to dismiss, according to online court records.

Branson City Attorney Chris Lebeck declined to comment on the lawsuit but released a statement critical of Fulnecky drawing attention to the suits in the media. She held press conferences announcing each lawsuit.

“It is disappointing that she continues to not honor the integrity of our judicial system by her prejudicial pretrial comments,” Lebeck said in the statement.

Jason Smith, an attorney with Spencer Fane LLP, said he’s been following the lawsuits. He and others in the Springfield office of the Kansas City-based firm have advised clients in COVID-related cases this year. He declined to discuss them, citing attorney-client privilege.

Smith’s take, in general, on cases involving constitutional law is that they’re not black and white.

“There’s this perception among the public that constitutional rights are an absolute,” he said. “We know that’s not true.”

For example, he said freedom of speech doesn’t grant someone the right to go into a crowded movie theater and declare there’s a fire.

“Obviously, cities and municipalities can take action and pass laws and ordinances in the name of safety and health and protecting people within those cities,” he said.

The SPS case is a similar analysis, he said, as the school district is a public governmental body that can take action to impose rules and regulations for safety and health purposes.

Precedent position
The attorneys interviewed for this story say they are unaware of any other similar COVID-related lawsuits filed in Missouri.

Fulnecky noted a Louisiana judge last month granted a temporary restraining order on a mandatory face mask order issued by the mayor of Shreveport. Days later, the judge made the order permanent, noting the mayor didn’t have the authority to issue the order, according to media reports.

For Fulnecky, the face mask lawsuits center on whether governments can intervene and have compelling interest to overreach into people’s lives.

“It can be the masks now, but what’s it going to be in three, four, five months from now?” she said. “Is it going to be mandatory vaccines on every person? If you let them reach into your lives and control every aspect of your life, where do you stop? It’s a slippery slope.”

Smith doesn’t see the mask mandates leading to other forms of government control.

“This is such a unique time and involving such unique issues, that I really don’t see these current mask mandates as being any sort of precedent-setting set of circumstances,” he said.

However, lawyers expect the court will set state precedent in the three local lawsuits.

“Whatever ruling comes out of these particular cases, there is going to be precedent to that and it is going to have the broader impact one way or the other,” Smith said.

Because the plaintiffs in the face mask cases want the ordinances to be stricken as unconstitutional, Smith said he didn’t envision other suits being filed at this time.

“I just don’t see others piggybacking on this, because if the plaintiffs here are successful in their cases, then they’ll not only be successful on behalf of themselves, but on behalf of everyone in the community,” he said.

To seek community help to fund their legal fees, Shelton and Borishkevich each established GoFundMe crowdfunding campaigns. At press time, Shelton’s fund had raised $3,175 of its $25,000 goal, while Borishkevich was at $685 of a $10,000 goal. Shelton also is raising money through Venmo and PayPal.


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