FILED

01/19/22
JOAN M. GILMER
CIRCUIT CLERK
ST. LOUIS COUNTY
IN THE CIRCUIT COURT OF ST. LOUIS COUNTY
STATE OF MISSOURI

THE STATE OF MISSOURI )

ex rel. ERIC S. SCHMITT, )
)
Plaintiffs, )
vs. ) Cause No. 22SL-CC00250
)
ST. LOUIS COUNTY, ) Div.: 2
)
Defendant. )

ORDER

On January 18, 2022, the Court called for hearing Plaintiff’s Motion for Temporary

Restraining Order and Motion to Expedite Response. The parties appeared by and through

counsel. The Court heard argument on the motions and now, being fully apprised in the matter,

rules as follows:

MOTION FOR TEMPORARY RESTRAINING ORDER

Plaintiff moves this Court to temporarily enjoin St. Louis County from enforcing or

publicly posting its January 5, 2022 “Face Covering Order”, on the basis that it is prohibited by

§67.265 RSMo. Plaintiff also contends that the order is not applicable to school districts.

The issue before this Court is one of statutory interpretation, not politics.

I. STANDARD

Missouri Supreme Court Rule 92.02 governs the issuance of temporary restraining orders

and preliminary injunctions. Granting a temporary restraining order requires a showing of

“irreparable injury, loss, or damage will result in the absence of relief.” Mo. Sup. Ct. R.

92.02(a)(1). “When considering a motion for a preliminary injunction,” Missouri courts “should

weigh ‘[1] the movant’s probability of success on the merits, [2] the threat of irreparable harm to
the movant absent the injunction, [3] the balance between this harm and the injury that the

injunction’s issuance would inflict on other interested parties, and [4] the public interest.’” State

ex rel. Dir. of Revenue v. Gabbert, 925 S.W.2d 838, 839 (Mo. banc 1996) (quoting Pottgen v.

Mo. State High Sch. Activities Ass’n, 40 F.3d 926, 928 (8th Cir. 1994)). “The likelihood of

success on the merits is ‘[t]he most important of the [preliminary-injunction] factors.’” Craig v.

Simon, 980 F.3d 614, 617 (8th Cir. 2020) (per curiam) (quoting Shrink Mo. Gov’t PAC v. Adams,

151 F.3d 763, 764 (8th Cir. 1998)). “It is the movant's obligation to justify the court's exercise of

such an extraordinary remedy.” Gabbert, 925 S.W.2d at 839, citing 2 Am.Jur.2d Administrative

Law § 600.

II. LAW

The relevant provisions of §67.265 RSMo. state as follows:

1…(1) Any order issued during and related to an emergency declared pursuant to
chapter 44 that directly or indirectly closes, partially closes, or places restrictions on
the opening of or access to any one or more business organizations, churches,
schools, or other places of public or private gathering or assembly, including any
order, ordinance, rule, or regulation of general applicability or that prohibits or
otherwise limits attendance at any public or private gatherings, shall not remain in
effect for longer than thirty calendar days in a one hundred eighty-day-period,
including the cumulative duration of similar orders issued concurrently,
consecutively, or successively, and shall automatically expire at the end of the thirty
days or as specified in the order, whichever is shorter, unless so authorized by a
simple majority vote of the political subdivision's governing body to extend such
order or approve a similar order; provided that such extension or approval of similar
orders shall not exceed thirty calendar days in duration and any order may be
extended more than once;
….

5. No political subdivision of this state shall make or modify any orders that have the
effect, directly or indirectly, of a prohibited order under this section.

§67.265.1(1) and .5 RSMo. (emphasis added).

 III. ANALYSIS

A. Likelihood of Success on the Merits

First, Plaintiff argues the January 5 Order is unlawful because the St. Louis County

Council had previously terminated a similar order on July 27, 2021. According to Plaintiff,

§67.265.5 prohibits the County from enacting any subsequent similar orders. Ever. For any

reason. Plaintiff is unlikely to succeed with this argument. Plaintiff equates a “terminated” order

with one “prohibited…under this section”. The two are not the same, and equating an order

terminated by a vote of the County Council with an unlawful order, would deviate from the plain

language used by the Missouri State Legislature.

Second, Plaintiff argues that the County’s January 5 Order is unlawful pursuant to

§67.265.1(1), as the County is time limited due to a previous face covering order entered on

September 27, 2021. Plaintiff contends that the prior order was in effect over 30 days within a

180 day time period, therefore the County cannot enact a new, similar order unless done so

before the order expired.

Plaintiff is not likely to succeed on its second argument for several reasons. First, the

plain, qualifying language of §67.265.1(1) requires its application to orders “…issued during

and related to an emergency declared pursuant to chapter 44…” §67.265.1(1) RSMo (emphasis

added). Governor Parson had not declared an emergency as of January 5, 2022. Therefore, the

current order is not issued “during” or “related to” a declared emergency, and §67.265.1(1) does

not apply.

Second, even if this Court disregards the above qualifying language, the time limitation

established in §67.265.1(1) RSMo includes the cumulative duration of “…similar orders issued

concurrently, consecutively, and successively,...” (emphasis added). The September 27, 2021
order went into effect before the order at issue, not at the same time or after. If the Missouri

Legislature wanted this Court to accumulate such time from a prior order, it certainly would have

included such words or phrases as “prior to”, “previously” or “before” to clearly establish its

intent.

Finally, even if the Court were to actively insert the aforementioned words or phrases

into the statute, Plaintiff would not likely succeed on this issue. Under §67.265.1(1) RSMo, all

such orders entered pursuant to its terms expire in 30 days “unless so authorized by a simple

majority vote of the political subdivision's governing body to extend such order or approve a

similar order;…” (emphasis added). A majority of the County Council passed the January 5

Order, a “similar order” to the September 27 order. The Missouri Legislature did not qualify the

language “or approve a similar order” by indicating it must be done so before the original 30

days expires, as Plaintiff argues. The state legislature limited the authority of a health officer,

local health agency, or public health authority to enact such orders indefinitely, however, it did

allow a duly elected legislative body to act when it deemed necessary. Consequently, even if

this Court were to apply §67.265.1(1) RSMo, the January 5 Order would not be prohibited.

B. Irreparable Harm, the Balance of Harm, and the Public Interest

With regard to the factors of irreparable harm, the public interest, and the balance of

harm, Plaintiff essentially argues these remaining factors all weigh in its favor because St. Louis

Countians should not be subject to what Plaintiff deems the unlawful January 5 Order. These

contentions are premised on this Court finding Plaintiff is likely to succeed with its claim that the

order is unlawful, which the Court does not find at this time. In addition, Plaintiff has not denied

the current serious nature of the COVID-19 epidemic. The St. Louis metropolitan area has
reportedly set consecutive records for COVID related hospitalizations, and related deaths in the

community are rising dramatically.

Further, the Court notes that the January 5 Order does not provide for any enforcement

mechanism.1 Accordingly, at this time, the remaining three factors weigh against providing

Plaintiff the “extraordinary relief” of a temporary restraining order.

C. Application to School Districts

Plaintiff contends in its motion that the January 5 Order cannot apply to schools, as such

regulation is prohibited by Article VI, § 18(c) of the Missouri Constitution. Although it is

unclear what temporary relief Plaintiff is seeking at this time, its motion does refer to its

previously filed Petition which requests, among other things, an injunction on this issue.

Assuming Plaintiff is seeking such relief, it is not necessary for the Court to act at this time, as

the January 6 Order on its face specifically exempts schools.

MOTION TO EXPEDITE RESPONSE

With regard to Plaintiff’s Motion to Expedite Defendant’s Response, the parties agreed at

the time of hearing that Defendant would file any responsive pleadings by January 28, 2022.

1
The Court reserves its judgment regarding the effectiveness of this provision.
 WHEREFORE, based upon the foregoing, the Court orders as follows:

1. Plaintiff’s Motion for Temporary Restraining Order is DENIED.

2. Defendant shall file responsive pleadings by January 28, 2022.

3. This matter is set for hearing on Plaintiff’s Motion for Preliminary Injunction for

February 8, 2022 at 9:00 a.m.

4. The parties shall prepare and submit an agreed upon scheduling order consistent with

the hearing date no later than January 24, 2022. If the parties cannot agree upon a

scheduling order, they shall immediately contact the Court to set a hearing to resolve

the matter.

Judge Division 2
Judge Division 99
June 10,19,
January 2015
2022