JEFFERSON CITY - A Cole County judge ruled Tuesday that local health orders imposed to curb the spread of COVID-19 in the state are illegal and should be lifted.

Judge Daniel Green ruled DHSS regulations unconstitutionally delegate too much power to individual health officials and directors, bypassing the authority given to elected bodies.

In his ruling, Green said DHSS can't "abolish representative government in the creation of public health laws" or "authorize closure of a school or assembly based on the unfettered opinion of an unelected official."

The lawsuit was filed in December 2020 by a Wildwood resident, a restaurant in Chesterfield and a church in Fenton. 

At issue are rules issued by DHSS authorizing the department or local health agency directors to put "discretionary 'control measures'" in place, such as orders "affecting individuals, schools, organizations, businesses or other entities. That includes closing schools or places of public assembly.

In his ruling, Green said the rules violate the separation of powers principles of the Missouri Constitution because they "place the creation of orders or laws, and enforcement of those laws, into the hands of an unelected official." 

Green said the DHSS regulations are "open-ended," failing to give standards to guide health authorities in creating public health orders "purporting to prevent the spread of a communicable disease into the state." Green added the orders lack a system for holding health officials accountable.

"A local health agency director is constitutionally prohibited from exercising discretion to issue generally applicable rules prohibiting certain conduct or requiring certain conduct and disciplinary consequences for violations of the director's unilaterally created rules," Green's ruling said. "Yet this has been happening across the state for over 18 months, thanks to unconstitutional language buried in state regulations." 

Green said the DHSS regulations are also "inconsistent with the public health law framework established by Missouri statutes." The power to create such laws, Green said, lies with "elected legislative bodies." Such bodies include county commissions, county councils and elected county health center boards.

Judge Green found the regulations violate the equal protection clause of the state constitution, citing rules that differ between counties "even though COVID-19 is not a county-specific disease."

"Individual freedoms are affected in different ways throughout Missouri relating to the same COVID-19 illness thanks to the DHSS that allow one person to make and enforce laws," Green wrote.

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