Nebraska judge refuses to block Omaha's new mask mandate

FILE - Jutta Graham, left, and Tom Wagoner practice the basics of dancing the Rumba, while wearing masks, during a day of dance lessons Sunday, Feb. 14, 2021, at The DelRay Ballroom in Lincoln, Neb. A judge refused to block Omaha's new mask mandate Tuesday, Jan. 25, 2022, after the state challenged the rule. The state had argued that local health officials didn't have the authority to issue the new mask rule that took effect Jan.12 while the Douglas County Health Director maintained that city code gave her the power to do that. (Kenneth Ferriera/Lincoln Journal Star via AP File)

OMAHA, Neb. (AP) — A Nebraska judge on Tuesday refused to block Omaha’s new mask mandate, allowing the rule to continue while state officials challenge it in court.

Douglas County District Judge Shelly Stratman declined to issue an injunction the state requested in its lawsuit against the mandate, which took effect on Jan. 12.

The state has argued that Douglas County Health Director Lindsay Huse didn’t have the authority to issue a mask mandate unless the state approved it beforehand. In the past, the Nebraska Department of Health and Human Services rejected her previous requests.

Republican Gov. Pete Ricketts has adamantly opposed mask mandates throughout the pandemic although Omaha and many other Nebraska cities imposed them earlier. Omaha’s city council allowed its previous mandate to expire last May. Omaha Mayor Jean Stothert, a Republican, opposed issuing a new one now but said she believed Huse had the power to order one.

Huse has said she believes Omaha city code gives her the authority to issue a mandate, which is needed because of the recent “astronomical spike” in virus cases.

“We felt we were on solid legal ground and we’re pleased with the judge’s decision,” Huse said in a statement Tuesday. “The health department has and will continue to work tirelessly in this battle against COVID-19, and we hope that with everyone’s cooperation we can soon return to normal.”

The judge agreed that city code appears to give Huse the power to issue the mandate.

“This plain text appears, at least at this stage, to support the authority defendants assert Dr. Huse possesses,” Stratman wrote. If city and state officials don’t like that, Stratman said, they should change the law.

Nebraska Attorney General Doug Peterson, a Republican, said he disagrees with the judge’s decision, but will continue to pursue the lawsuit to determine whether Huse has the authority to issue such a mandate.

“A very important question still needs to be resolved in this case,” Peterson said. “That question is whether our laws allow one unaccountable official to unilaterally impose these kinds of mandates on individuals and businesses backed by the threat of fines or imprisonment.”

Nebraska set another record last week when it reported 29,141 cases to the federal Centers for Disease Control and Prevention for the week ending Thursday, up from 27,987 the week before.

Huse’s attorney, Robert Slovek, had argued that the state’s lawsuit was driven by politics.

“Too often the response to COVID-19 has sacrificed science on the altar of politics, which would be the case here if plaintiffs succeed in preventing the common-sense mitigation strategies at issue,” Slovek wrote.

The seven-day rolling average of daily new cases in Nebraska surged over the past two weeks from 2,749.86 new cases per day on Jan. 9 to 4,199.43 new cases per day on Sunday.

The number of people hospitalized with the virus has soared since late last month and hit 750 on Monday. Nebraska hospital officials have said they expect that number to continue growing over the next couple weeks.

The Omaha mask rule requires everyone ages 5 and older to wear face coverings in most public venues, unless they can maintain at least 6 feet of social distance from others. The mandate applies to schools, but doesn’t include church services or eating at a restaurant while seated.

The mask order will be reviewed every few weeks and health officials said it would be lifted if virus case counts and hospital capacity improve significantly.