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Attorney general files suit against Douglas County health director over Omaha mask mandate
  • Updated

Nebraska Attorney General Doug Peterson has filed a lawsuit against Douglas County Health Director Lindsay Huse and other county and city officials challenging Huse’s indoor mask mandate for Omaha.

Other plaintiffs in the suit are the Nebraska Department of Health and Human Services and Director of Public Health Dr. Gary Anthone. The suit says Huse’s authority to issue a mask mandate under Omaha’s municipal code “conflicts with applicable state law.”

Lawsuit against Omaha mask mandate

Douglas County District Court Judge Shelly Stratman has scheduled a hearing for 10 a.m. Monday, Jan. 24. It initially was scheduled for this coming Tuesday.

The mandate will remain in effect until the judge rules otherwise or until Huse deems it no longer necessary.

Huse has said that as she considered issuing a temporary mandate, she conferred with the county attorney who advises the health department and the city attorney, both of whom told her she was on solid legal ground.

Douglas County Attorney Don Kleine said the city’s Law Department will take the lead in defending the order because Huse issued the mandate in her role as the city’s health director.

Huse’s order, which she announced Tuesday, took effect at 12:01 a.m. Wednesday for schools and other public indoor spaces within the city limits of Omaha. There are several exceptions where the mandate does not apply.

Peterson is seeking a temporary and permanent injunction declaring the mandate “void and unlawful” and that Huse did not have “jurisdiction or authority” to issue it.

Gov. Pete Ricketts, who said Tuesday that he would ask Peterson to consider legal action, said in a statement that Huse’s action is an “abuse of power” that “undermines trust in our nation’s pandemic response.”

In the lawsuit, Peterson said Huse used language in her order that mirrored a previous mandate she unsuccessfully tried to impose in August 2021 and the mandate that the Omaha City Council adopted in August 2020.

One section of Omaha’s municipal code says the Douglas County health director “shall have the authority to adopt such rules and regulations, restrictions or measures as he shall deem necessary to protect the public health of the city.”

The lawsuit says that the state is “suffering irreparable harm” because Huse’s order circumvents Anthone’s right to approve or disapprove measures issued by county health departments.

“That harm includes the state’s interest in ensuring that a local health official cannot unilaterally and without limitation impose infectious-disease control measures,” the suit says. “The public interest weighs in favor of stopping government officials from acting unlawfully even when they are pursuing public health goals.”

Peterson argues that there are parts of the city code written when the City Council passed the mask mandate in August 2020 that involve details on masking requirements, but because that mandate expired on May 25 after the council did not extend it, “Huse cannot invoke the general ordinances to resurrect a mask mandate.”

The lawsuit also argues that Huse did not obtain approval from the state health department for the mandate, in her capacity as a county health director, as required by state law. However, Huse has said that Omaha city code enables her to act as Omaha’s health director, which is why the mandate is in effect only within Omaha city limits and not all of Douglas County. Peterson argues that Huse’s actions conflict with and are preempted by state law regardless.

Peterson also names Omaha Mayor Jean Stothert, Omaha Police Chief Todd Schmaderer, Douglas County Sheriff Tom Wheeler and members of the Douglas County Board of Health as defendants in the lawsuit.

World-Herald Staff Writer Julie Anderson contributed to this report.

Ricketts declares state 'strong,' names tax relief, prison, water as priorities
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LINCOLN — Gov. Pete Ricketts launched his final State of the State speech Thursday with reflections on his last seven years in office, a period in which the state faced historic floods, fires and the COVID-19 pandemic.

“In the face of unprecedented challenges, the State of the State is strong,” he said, lauding the state’s handling of the pandemic, its unemployment rate, manufacturing sector, workers, legislators’ work last session and problem-solving efforts across the state.

And he set the tone for the session ahead, highlighting initiatives and causes that would receive funding under the spending proposals he delivered to state lawmakers and laying out his top priorities.

“Putting money back into the pockets of hardworking Nebraskans. Protecting public safety. Securing access to our natural resources. And investing in one-time projects that will enhance our state. These are the ways we can keep Nebraska strong and growing in 2022,” he said.

Ricketts delivered his budget proposals during a year when the state is flush with cash. There’s expected to be $1.5 billion in its cash reserve by the end of the budget period, $412 million in unanticipated state general fund revenues, and $1.04 billion in federal COVID-19 relief funds.

Given those numbers, he argued that lawmakers needed to return tax money to Nebraskans. He proposed reductions worth around $85 million for the current two-year budget period. Through the next two-year budget period, the total would exceed $460 million.

For his last year in office, he shifted the focus for tax relief from property taxes to income taxes. He proposed phasing down the top tax rate for both individual and corporate income taxes and accelerating plans to exempt Social Security benefits from income taxes.

For property taxes, he called for ensuring that the LB 1107 property tax credit program, which provides income tax credits to offset a portion of school property taxes paid, remain at least at the current level of $548 million annually. He also called for putting more money toward homestead exemptions for low-income elderly and disabled homeowners.

State Sen. Lou Ann Linehan of Elkhorn, who chairs the Revenue Committee, said she was “thrilled” with the governor’s proposals, including the tax cuts and proposed uses of the pandemic relief money.

“I think he’s done an excellent job,” she said. “He’s really been very thoughtful about trying to include everybody.”

But Mark McHargue, president of the Nebraska Farm Bureau, called for doing more to address property taxes, which he said are the highest priority for Nebraskans. He said Nebraskans need $700 million to $900 million more in property tax relief than provided for under current state law.


Gov. Pete Ricketts leaves the legislative chambers after giving the State of the State address Thursday.

As he has in the past, Ricketts held the line on state spending. Under his plan, ongoing expenses paid for with state general funds would increase by an average of 2.9% for the two years ending June 30, 2023. That’s below his perennial target of 3% spending growth but higher than the 2% average approved by state lawmakers last year.

“While there is an opportunity to fine-tune this plan, I expect state agencies and our partners to live within our existing budget and limit any budget growth to under 3 percent,” he said.

Ricketts kept the increase from going higher by tapping federal pandemic relief dollars to cover some costs, including $23 million worth of pay for corrections officers, $36.7 million worth of salary increases for employees at the state’s 24-hour institutions and $25 million worth of increased costs in child welfare.

He attributed those costs to pandemic-driven disruptions in the labor market and in child welfare, the kinds of problems that the federal relief is designed to alleviate.

Pay raises negotiated with key state employee groups account for most of his proposed increases. The state agreed to more than $105 million in raises to make the state competitive in hiring and keeping workers in the face of record low unemployment rates.

Ricketts also focused on the $155 million that he proposed to take from the cash reserve for building a new prison. Along with money set aside by lawmakers last year, that would cover the full $270 million cost of the proposed institution, which he has argued is necessary to replace the aging Nebraska State Penitentiary.

Lawmakers did not appropriate the money last year for a prison to give officials more time to look at whether criminal justice reforms could ease overcrowding and to assess current facilities and needs. The three branches of government cooperated with the nonprofit Crime and Justice Institute on a study of criminal justice data and potential policy changes. The report from the study has not been released yet.


Speaker of the Legislature Mike Hilgers, facing, and Sen. John McCollister speak before Gov. Pete Ricketts gave his State of the State address at the Nebraska State Capitol in Lincoln on Thursday.

“I am not asking anyone to choose between supporting a modern State Penitentiary and pursuing policies that aim to reduce crime and recidivism,” he said. “These solutions are not at odds, and there is room for both as we work to strengthen Nebraska.”

Sen. Steve Lathrop of Omaha, who chairs the Judiciary Committee, said he agrees with the governor that criminal justice reform and capital projects aren’t mutually exclusive. Lathrop, Ricketts and Chief Justice Michael Heavican are co-chairs of the working group that dived into state data.

But Lathrop thinks corrections reform should be considered before the investment in additional space. Without knowing population growth projections, he said, the state could open a new 1,512-bed facility and still fall short.

He also took issue with the governor’s argument that the State Penitentiary is a 150-year-old, crumbling structure, when much of the facility is much newer — modular housing units replaced cellblocks in the early 1980s, for instance, and two new 100-bed dorm units opened in 1998, according to the department.

The governor’s budget package included a separate set of proposals for using money coming to the state through the American Rescue Plan Act. His plan laid out 29 uses for the money in five areas: public health emergency response; responses to negative economic impacts; premium pay for essential workers; infrastructure including water, sewer and broadband; and administrative costs.

Ideas in the public health area range from helping ensure sufficient hospital capacity for the state to covering part of the cost for replacing the heating, ventilation and air conditioning system in the State Capitol.


Gov. Pete Ricketts delivers his State of the State address at the Nebraska State Capitol in Lincoln on Thursday.

Projects addressing negative economic impacts included workforce housing, assistance for Omaha’s North 24th Street economic development projects and support for a planned beef processing plant in North Platte. They also included a program offering grants for low-income parents to help their children make up pandemic-related learning losses.

Under the heading of premium pay for essential workers, Ricketts included some of the pay increases for state workers.

The infrastructure projects include part of the cost for a major canal system in Perkins County, which adjoins Colorado, and construction of a lake along the Platte River between Omaha and Lincoln. Also included are additional repairs on an irrigation canal between Fort Laramie, Wyoming and Gering, Nebraska, as well as some drinking water and wastewater projects.

Sen. John Arch of La Vista called the governor’s proposals thoughtful and an investment in Nebraska’s future, and Sen. Steve Erdman of Bayard said he appreciated the governor’s attention to rural Nebraska’s needs, even if he thought Ricketts could have put more into the North Platte beef processing plant.

Sen. John Stinner of Gering, who chairs the Appropriations Committee, said he thought Ricketts “did a good job of covering what the accomplishments have been over his time in office, laid out his priorities and was fairly comprehensive about what his initiatives are.”

The Appropriations Committee will review the governor’s proposals, along with other requests, as they craft a budget plan. This session, they will use a similar process to develop a separate plan for the pandemic relief dollars.

“It’s something to work on, it’s his recommendations, and we have a process here that we’ll follow,” Stinner said. “Normally, we’re fairly close to his recommendations. We’ll see where we come out.”

Supreme Court halts COVID-19 vaccine rule for US businesses
The Supreme Court has stopped the Biden administration from enforcing a requirement that employees at large businesses be vaccinated against COVID-19 or undergo weekly testing and wear a mask on the job

WASHINGTON — The Supreme Court has stopped a major push by the Biden administration to boost the nation’s COVID-19 vaccination rate by requiring that employees at large businesses get a vaccine or test regularly and wear a mask on the job.

At the same time, the court is allowing the administration to proceed with a vaccine mandate for most health care workers in the U.S. The court’s orders Thursday came during a spike in coronavirus cases caused by the omicron variant.

The court’s conservative majority concluded the administration overstepped its authority by seeking to impose the Occupational Safety and Health Administration’s vaccine-or-test rule on U.S. businesses with at least 100 employees. More than 80 million people would have been affected, and OSHA had estimated that the rule would save 6,500 lives and prevent 250,000 hospitalizations over six months.

“OSHA has never before imposed such a mandate. Nor has Congress. Indeed, although Congress has enacted significant legislation addressing the COVID–19 pandemic, it has declined to enact any measure similar to what OSHA has promulgated here,” the conservatives wrote in an unsigned opinion.

In dissent, the court’s three liberal justices argued that it was the court that was overreaching by substituting its judgment for that of health experts.

“Acting outside of its competence and without legal basis, the Court displaces the judgments of the Government officials given the responsibility to respond to workplace health emergencies,” Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor wrote in a joint dissent.

President Joe Biden said he was “disappointed that the Supreme Court has chosen to block common-sense life-saving requirements for employees at large businesses that were grounded squarely in both science and the law.”

Biden called on businesses to institute their own vaccination requirements, noting that a third of Fortune 100 companies already have done so.

When crafting the OSHA rule, White House officials always anticipated legal challenges — and privately some harbored doubts that it could withstand them. The administration nonetheless still views the rule as a success at already driving millions of people to get vaccinated and encouraging private businesses to implement their own requirements that are unaffected by the legal challenge.

The OSHA regulation had initially been blocked by a federal appeals court in New Orleans, then allowed to take effect by a federal appellate panel in Cincinnati.

Both rules had been challenged by Republican-led states. In addition, business groups attacked the OSHA emergency regulation as too expensive and likely to cause workers to leave their jobs at a time when finding new employees already is difficult.

The National Retail Federation, the nation’s largest retail trade group, called the Supreme Court’s decision “a significant victory for employers.”

The vaccine mandate that the court will allow to be enforced nationwide scraped by on a 5-4 vote, with Chief Justice John Roberts and Justice Brett Kavanaugh joining the liberals to form a majority. The mandate covers virtually all health care workers in the country, applying to providers that receive federal Medicare or Medicaid funding. The rule has medical and religious exemptions.

Biden said that decision by the court “will save lives.”

In an unsigned opinion, the court wrote: “The challenges posed by a global pandemic do not allow a federal agency to exercise power that Congress has not conferred upon it. At the same time, such unprecedented circumstances provide no grounds for limiting the exercise of authorities the agency has long been recognized to have.” It said the “latter principle governs” in the health care arena.

Justice Clarence Thomas wrote in dissent that the case was about whether the administration has the authority “to force health care workers, by coercing their employers, to undergo a medical procedure they do not want and cannot undo.”

Decisions by federal appeals courts in New Orleans and St. Louis had blocked the mandate in about half the states. The administration already was taking steps to enforce it elsewhere.

More than 208 million Americans, 62.7% of the population, are fully vaccinated, and more than a third of those have received booster shots, according to the federal Centers for Disease Control and Prevention. All nine justices have gotten booster shots.