9/23/21 - Parents Sue Ottawa County Over Mask Mandate

Another lawsuit has been filed in West Michigan concerning the requirement of masks being worn by young students.

OTTAWA COUNTY, MI –(MLive) - A group of parents has filed a lawsuit against Ottawa County officials over its health officer’s order that pre-kindergarten to sixth-grade students wear masks to slow the spread of COVID-19.

The group contends that the order is unlawful because it did not require approval of elected leaders, the county Board of Commissioners.

The attorney for Ottawa County called the legal action “nonsense.”

The lawsuit comes a month after nearly 1,000 people, mostly opposed to the mask mandate, packed a Board of Commissioners meeting.

Chairman Roger Bergman said then that the board had no authority to reverse Administrative Health Officer Lisa Stefanovsky’s decision.

“There is no question that the Board of Commissioners cannot make this decision and cannot reverse this decision. Legally, the Board cannot fire the health officer for making this decision nor can it use its power of the purse to bully her into rescinding the decision.”

The parents’ attorneys, Adam Tountas and Jonathan Koch, wrote: “That’s simply untrue.”

They said that parents have a fundamental right to make such decisions for their children.

The lawsuit, filed in Ottawa County Circuit Court, said the mask mandate is “an unlawful exercise of governmental authority because it purported to take effect without the County Commission, who serves as the elected representative of the people, voting to approve it.”

It also contended the county allowed the Health Department to act without oversight, which is “setting the stage for more invasive action. Since the Mask Mandate took effect, Ottawa County’s Corporation Counsel has stated, in writing, that the Health Department ‘absolutely holds the right’ to require that every student age 12 and up obtain a COVID vaccination as a condition of attending school in Ottawa County. Clearly, the line has been drawn.”

The lawsuit, filed on behalf of five families with children in Allendale, Coopersville, Hudsonville and Jenison public schools, seeks a declaratory ruling that the mandate is unlawful, that the county Board of Commissioners has to approve such rules to take effect “and that, in a democratic republic, the voice of the people has value.”

Douglas Van Essen, the county corporation counsel, said the lawsuit “conflates ‘regulation’ with ‘order’ and argues that all unelected county officers’ decisions are to be ‘overseen’ by the part-time county commissioners, who have no medical training. This view of the law is obviously wrong or the board of commissioners could overturn the unelected appointed medical examiner’s autopsy results.”

In an email, he said: “The truth of the matter is that the law requires the Health Officer to have at least a masters of public health and she has access to private health information of residents across Ottawa County to inform her determination and her orders.

“The notion that commissioners without any medical training and no access to the same health information could reverse the Health Officer’s Public Health Orders is a position that ought to scare every member of the public. I am confident that the courts will apply the rule of law and strike down the nonsense in this Complaint.”

The lawsuit contended that Michigan’s Public Health Code requires a local governing body to approve or disapprove of regulations set by a health department.

“And, those regulations only become effective after receiving this ‘approval,’” the lawsuit said.

The lawsuit said the Health Department did not determine that an “imminent danger” existed that is required under state law to issue such an order.

“Here, the Health Department made numerous findings related to COVID-19, the Delta variant, and the efficacy of mask wearing as a mitigation technique in connection with the Mask Mandate. But, the Mask Mandate does not contain any determination that ‘an imminent danger to the health or lives of individuals exists in (Ottawa County).’ Nor does it contain any factual findings that could support a determination of that type.”

The plaintiffs asked for a “speedy hearing” on the lawsuit.