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As Missouri's attorney general fights mask mandates, taxpayers foot the bill to defend them

 Missouri Attorney General Eric Schmitt announces a potential settlement in a lawsuit against manufacturers and distributors of addictive opioid painkillers on Thursday, July 22, 2021.
Sarah Fentem
St. Louis Public Radio
Missouri Attorney General Eric Schmitt announces a potential settlement in a lawsuit against manufacturers and distributors of addictive opioid painkillers on Thursday, July 22, 2021.

Missouri Attorney General Eric Schmitt can sue cities, counties and school districts over mask mandate measures aimed at slowing the spread of COVID-19 without costing his office anything.

That’s because Schmitt’s office uses salaried lawyers on staff to pursue such cases.

The same can’t be said for some of the defendants Schmitt has sued this year.

St. Louis County, for example, hired the Lewis Rice law firm to defend it against Schmitt’s lawsuit. From June through August, the law firm billed the county $169,914.

University Health, which runs the Jackson County Health Department, hired Shook, Hardy & Bacon to defend a separate lawsuit filed by Schmitt. The firm billed the health department $17,774 in August.

And Columbia Public Schools, which Schmitt sued on Aug. 24, received an invoice of nearly $12,000 from the Mickes O’Toole law firm for just one week of legal services.

Each of those defendants likely incurred more costs as litigation has continued through September and October. Invoices through August were the most recent made available in response to Missouri Sunshine Law requests.

Defendants in the lawsuits have credited requirements to wear masks in most indoor settings with helping reduce the spread of COVID-19 and its highly contagious delta variant.

“As stated in August, the decision to file suit against a public school district after a local decision is made in the interest of safety and keeping students in school will waste taxpayer dollars and resources, which are better spent investing in our students,” said Columbia Public Schools spokesperson Michelle Baumstark. “Columbia Public Schools intends to aggressively defend its decision to keep its community and its scholars safe.”

St. Louis County Executive Sam Page, through a spokesman, declined to comment, citing pending litigation.

'Time and energy'

Critics of Schmitt’s pursuit of litigation against mask orders suspect the tactic is aimed at burnishing his conservative political credentials, as debate over masks takes an increasingly political turn. Schmitt is running in a packed Republican primary for the U.S. Senate race to replace the outgoing Roy Blunt in 2022.

“This anti-scientific (fight) that our attorney has been undertaking on behalf of his political career, it’s unbelievable to me,” said Crystal Williams, a Jackson County legislator. “The amount of money and time and energy that has been undertaken in order to fight it, it’s just — I don’t know. I just don’t understand it.”

Schmitt’s office is defending its pursuit.

“I think the Attorney General has made his position pretty clear, but pushing back on local governments who are hellbent on control and power is extremely important, and it’s a fight we’re not going to back down from,” Missouri Attorney General spokesman Chris Nuelle said in an email to the NPR Midwest Newsroom.

Like Schmitt’s office, Kansas City and the City of St. Louis used staff attorneys to handle legal challenges to mask orders and haven’t incurred more costs for taxpayers.

Mixed results for Schmitt

Schmitt filed suit against Columbia Public Schools after the district announced on Aug. 13 that it would require masks for people in school buildings and on buses, even though the Columbia City Council had just voted against a mask mandate.

The lawsuit said that few students had died of COVID-19 at that point and that the risk of children spreading the virus was minimal. It also claimed masks have little effect in stopping infection surges.

“The cure should not be worse than the disease,” the lawsuit said. The Centers for Disease Control and Prevention’s latest guidance conflicts with Schmitt’s assertions, in part reading: “CDC recommends universal indoor masking for all teachers, staff, students, and visitors to K-12 schools, regardless of vaccination status.”

The case against Columbia Public Schools was filed as a “reverse class action” lawsuit, which would have caused its outcome to apply to all school districts in Missouri that had a mask policy.

A Boone County judge ruled last month that Schmitt lacks the authority to certify a class action, or make the lawsuit apply beyond Columbia Public Schools.

Columbia Public Schools has asked that the lawsuit be dismissed, and it wants Schmitt’s office to pay the district’s legal fees.

On July 26, St. Louis County issued an order requiring people age 5 and older to wear masks indoors in most circumstances, as the delta variant led to another wave in COVID-19 infections. Schmitt’s office sued St. Louis County and St. Louis that same day.

After months of legal wrangling, St. Louis County was able to continue enforcing its mask order when a St. Louis County Circuit Court judge on Oct. 14 lifted a temporary restraining order against the measure. The judge gave Schmitt 10 days to file a new petition.

Schmitt sued Jackson County and its health department on Aug. 19, saying there was no evidence that County Executive Frank White and other top officials considered science or data that would justify the mask order issued on Aug. 4.

That case is pending. The Jackson County mask order remains in effect until Nov. 7. Last week, Jackson County legislator Dan Tarwater introduced a resolution to be heard at the Oct. 25 legislative meeting that would end the mask order immediately if it’s passed. The measure has two other sponsors: Teresa Galvin and Jeanie Lauer.

Schmitt has been engaged in other high-profile litigation this year. Just last week, he joined Texas Attorney General Ken Paxton in a lawsuit against President Joe Biden for stopping construction of a wall along the U.S.-Mexico border, which had been a priority of President Donald Trump's.

Based at St. Louis Public Radio, Steve Vockrodt is the Midwest Newsroom’s investigative editor. Follow him on Twitter: @SteveVockrodt

The Midwest Newsroom is an investigative journalism collaboration including St. Louis Public Radio, KCUR, Iowa Public Radio, Nebraska Public Media and NPR.

Copyright 2021 St. Louis Public Radio. To see more, visit St. Louis Public Radio.

Steve Vockrodt