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Judge considers dismissing parents' lawsuit against mask mandate restrictions

A 3rd District judge is considering a motion to dismiss a lawsuit filed against Utah's governor and Salt Lake County regarding mask mandates in schools.

A 3rd District judge is considering a motion to dismiss a lawsuit filed against Utah's governor and Salt Lake County regarding mask mandates in schools. (Johanna Kirk, Deseret News)

Estimated read time: 4-5 minutes

SALT LAKE CITY — A judge is considering whether to dismiss a lawsuit filed against the Utah Legislature's law restricting mask mandates and the Salt Lake County Council's 2021 vote to terminate a county public health order requiring masks in schools.

The lawsuit was filed by Concerned Coalition, which includes a group of parents who wanted a mask mandate to be in place this school year in order to send their children to class and considered the lack of a mask mandate detrimental to their child's education.

The plaintiffs in the case are a group of children. All but six of the children are older than 5 and have a disease impacting their health.

Following arguments during a hearing Friday, 3rd District Judge Vernice Trease said she will decide whether to grant a motion to dismiss the case as part of a written decision.

After the hearing, the Concerned Coalition released a statement insisting that the case has merit and that the parents have standing — arguments that attorneys for the state and the county contested. The coalition said it is eager for the judge's ruling, especially in light of the current COVID-19 surge.

"Utah's health care and educational systems are being devastated by an unprecedented surge in COVID-19 infection, driven by a new variant and fueled by policy decisions that enable the virus to run wild. More than ever, we need common sense and evidence-based policies to protect our kids and their school teachers, staff and service providers, and administrators. Our legal efforts to unshackle our schools and health departments have never been more crucial," the coalition said.

The Concerned Coalition's attorney, Greg Skordas, brought up the rising number of COVID-19 cases in Utah and steps currently being taken to reduce spread of the omicron variant. Trease, however, said that because that information is new it should not be considered as part of the current case, but could be brought up later after all attorneys are able to look into the information.

Skordas said that the coalition has never asked for the court to enter a mask mandate as part of the lawsuit, and said that doing so would be unconstitutional. Instead, he said the parents are asking for the court to allow a mask mandate to move forward when school or health officials decide that there should be a mandate.

The arguments were ironically made on the same day that the Salt Lake County executive health director ordered a 30-day mask mandate for all of Salt Lake County. The Salt Lake County Council, however, could potentially override that order, just as it did with a similar public health order issued last August.

Utah Gov. Spencer Cox and Salt Lake County are named as defendants in the lawsuit, each of which has asked the court to dismiss the claims against them.

Jeff Teichert, the attorney for the governor, argued that what the parents are requesting would not solve any of the issues the children are facing. Because the lawsuit is not attempting to create or reimpose a mask mandate, the case is not about masks but about authority, he said. Further, he said that the Legislature and the governor did not overreach their authority.

He argued that although there is great public interest around COVID-19 and masks, there is not the same public interest around legislative authority, which, he said, means the parents do not have sufficient interest to file this lawsuit.

"Their only concern is clarifying who has the authority to make the decision," Teichert said.

He pointed out that because the Utah State Board of Education is not a party in the lawsuit, there is no information available to the court to show whether the board would create a mask mandate if such a law were in place.

Teichert also noted that since the lawsuit has been filed, the children involved in the case now have access to vaccinations, which nullifies at least one of the arguments that was made when the case was filed.

Perrin Love, attorney for the Salt Lake City Council, argued that the court cannot revive the order that was canceled by the County Council requiring masks because the order, which was created on Aug. 11, 2021, has now expired. He said because of this, the case against the county is moot and should be dismissed.

He said that if the claims relate to some kind of future action instead, then any ruling from the court would be speculation. Love said the actions should be left to public health officials, educators, or Salt Lake County's executive department and not up to judges, and argued that the court can't enter an order based on what any of them might do in the future.

Love also argued that all students still have access under the free and equal education clause if they choose to stay home through remote learning and that constitutionally they are not required to have an education through a specific school or curriculum.

If Trease does not dismiss the lawsuit, the attorneys will set another hearing to discuss the merits of the case.

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