ST. JOSEPH — An emergency motion for a temporary restraining order against the Berrien County Health Department’s mask mandate in pre-K to 12th grade education settings was denied last week by Berrien County Trial Court Judge Dennis Wiley.
However, Wiley allowed to move forward a request for a preliminary injunction, which was included in the emergency motion. The injunction will be discussed in a hearing set for 9 a.m. Sept. 30, to be done via Zoom.
Three parents filed the emergency motion in an effort to stop the enforcement of the mask mandate, while their civil lawsuit winds its way through the court system. Both the emergency motion and the civil lawsuit were filed on Sept. 8 against the health department, acting Health Officer Courtney Davis, Bridgman High School, Lakeshore Middle School and Upton Middle School.
According to court documents, the parents stated the students will “have irreparable harm if these students across the state are mandated to wear a mask to school.”
They stated the health department was abusing its power when it issued the public health order on Sept. 1, which took effect after Labor Day.
“It serves no purpose to have healthy children wearing masks all day long in school,” they said in court documents.
In his order denying the temporary restraining order, Wiley said the parents have “not stated specific facts” that “clearly demonstrate immediate and irreparable injury, loss or damage” that will result if the children have to wear masks in school.
Wiley said the parents “have only broadly indicated some sort of unspecified risk of irreparable harm or injury to plaintiffs if a temporary restraining order is not granted.”
Wiley also denied allowing two of the three parents to file lawsuits on behalf of their children because their children are under the age of 14.
Remaining on the lawsuit is Morgen Ales, 17, on behalf of her father, Lloyd Allen Ales. They are being represented by attorney James Thomas of Grand Rapids.
The plaintiffs could not be reached for comment. Health department officials declined to comment Tuesday.
The seven-count lawsuit claims that Davis violated her statutory authority when she issued the emergency order and the factual data doesn’t support her declaration of imminent danger. The lawsuit asks the court to declare the public health order as unlawful, asks for a temporary restraining order against the perpetual health orders and requests costs, expenses and attorney fees.
In its public health order, the health department cited an increase in transmission rates of COVID-19 as the reason for the order.
Davis stated in the order that there were 790 confirmed and probable cases in August, up four-fold from the 156 cases reported in July and a 73 percent increase in the number of cases reported in August 2020.
In addition, Davis said the delta variant, which has become dominant, puts younger people more at risk of hospitalization.
“(It) is clear within a reasonable degree of medical certainty that absent the implementation of proven preventative measures, increased incidents of school-based transmission are inevitable,” Davis said in the order.
Davis said students will “unknowingly transmit the virus to other students as well as household and community members, further increasing community transmission.”