unmask kids sign web photo.jpg

An “Unmask Our Kids” sign is pictured in the front yard of a home near Botham Avenue in St. Joseph.

ST. JOSEPH — A court hearing about the Berrien County Health Department’s face mask mandate in schools was canceled Thursday morning due to the public health order being rescinded late Wednesday night.

However, the case may continue.

Berrien County Trial Court Judge Dennis Wiley gave Grand Rapids attorney James Thomas two weeks to file a brief on why the case should continue, with the school district’s attorney having two weeks after that to respond.

The health department issued the public health order requiring masks in school settings on Sept. 1, stating that the masks would help decrease the spread of COVID-19.

The order was rescinded as of 11:59 p.m. Wednesday due to language in the 2022 state budget, which stated health departments that issue emergency orders to combat the virus could lose their state funding.

Three parents filed the lawsuit Sept. 8 on behalf of their children, stating that the local public health order is unconstitutional because there is no statewide emergency and because the state legislature can’t delegate its authority to an unelected department head.

The three parents filed on behalf of their children, who are students at Bridgman High School, Upton Middle School and Lakeshore Middle School, which were listed as defendants along with the health department and acting Health Officer Courtney Davis.

Thursday’s hearing was to hear arguments about if a preliminary injunction should be put in place barring the enforcement of the mask mandate while the court case winds its way through the court system.

Wiley said that because there is no longer a countywide mask mandate, the hearing was no longer needed. Wiley questioned whether the lawsuit should continue.

Thomas said Lakeshore and Bridgman schools no longer have a mask mandate, but St. Joseph schools still do.

On Aug. 23, St. Joseph school board trustees approved requiring masks at all grade levels in the school district.

Thomas said he wanted to amend the lawsuit to reflect that even though the health department’s mask order was rescinded, St. Joseph schools still have one in place.

In a statement emailed to parents Wednesday night, St. Joseph Public Schools Superintendent Jenny Fee stated the district’s mask mandate remains in effect until the school board “deems it necessary to end the requirement.”

Thomas added that said he doesn’t want to dismiss the lawsuit against the health department because he doesn’t know what’s going to happen in a week or two concerning the mandate.

After Gov. Gretchen Whitmer signed the 2022 state budget Wednesday, she wrote in a letter that she would not allow what she called the unconstitutional budget language to take effect.

Wiley said he didn’t believe an amended complaint is appropriate. If the health department issued a new mask mandate in the future, Wiley said a new complaint could be filed.

He said the mask mandate by St. Joseph schools has nothing to do with the health department’s mask mandate.

“Your complaint, Mr. Thomas, has to do with the three school districts that they were enforcing a now-rescinded order from the health department. And their response was ... that they were complying with a lawful, at that time, order from the health department to enforce a mask mandate,” he said.

Wiley said the original complaint had nothing to do with the school districts’ decisions on mask mandates.

“They’re a separate body than the health department,” he said.

Wiley said after he receives the briefs on why the case should or should not continue, he will either hold another hearing or make a ruling based on the briefs.

Contact: lwrege@TheHP.com, 932-0361, Twitter: @HPWrege