Omaha mask mandate still in place after judge’s ruling
Nebraska attorney general’s request for temporary injunction is denied
Omaha’s mask mandate has been lifted. (Samuel Corum/Getty Images)
OMAHA — Don’t put away those masks yet. The indoor mask mandate in Nebraska’s largest city on Tuesday survived the first round in the state’s lawsuit to stop it.
Douglas County District Judge Shelly Stratman denied Attorney General Doug Peterson’s request to pause the Omaha mandate with a temporary injunction.
Stratman sided with Douglas County Health Director Lindsay Huse’s lawyers, who argued in Monday’s hearing that Huse had issued the ban in her role as the city’s health director. They argued she had the right under city code to enact the mandate.
In her order denying the injunction, the judge wrote that Huse appears to have derived her authority from the Omaha City Council and Omaha city code.
She wrote that the law’s “plain text appears, at least at this stage, to support the authority” that the city and county assert Huse possesses.
Huse, in a statement Tuesday, said she hopes that people will cooperate with the mask mandate and that “we can soon return to normal.”
“We felt we were on solid legal ground and we’re pleased with the judge’s decision,” she said.
Stratman left room for the possibility that the state could prevail during a civil trial. But she wrote that both sides had made sound enough arguments to avoid an injunction. The judge has not yet set a date for trial.
The state argued that the mandate was enacted improperly. The state said Huse, by nature of her job as Douglas County’s health director, needed state approval to enact a mask mandate.
“Although we disagree with the court’s ruling denying our request to immediately stop Dr. Huse’s mandate, we recognize that courts set a high bar for such requests,” Peterson said in a statement Tuesday.
The attorney general said the courts still need to resolve “whether our laws allow one unaccountable official to unilaterally impose these kinds of mandates.”
The three Republican members of the Omaha City Council joined the state in seeking an injunction. They argued that a sunset clause in the council’s last mask mandate had limited Huse’s authority to act.
Neither argument swayed Stratman. The state cannot appeal the judge’s ruling, according to the order’s language and a participating lawyer.
Her order said she did not see enough clear evidence that the state was likely to succeed in its lawsuit to issue a temporary injunction.
“While this matter is a weighty one, it is not simple,” Stratman wrote. “There are no previous cases analyzing the statutes and ordinances involved in this context.”
She suggested that state lawmakers and City Council members who want to change the law or city code could do so legislatively.
Dave Lopez, a lawyer working with GOP council members Aimee Melton, Brinker Harding and Don Rowe, said they hope to have the case heard and decided quickly.
Huse has said she issued a mask mandate because of a recent spike in COVID-19 infections. She said she wanted to avoid overwhelming local hospitals with the Omicron variant.
On Tuesday, a pandemic-high 452 people were hospitalized in Omaha’s Douglas County because of COVID-19, the county health department reported.
Huse’s mandate requires that masks be worn indoors in Omaha by people over the age of 5, except during religious services and when people can socially distance from one another.
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