Three Omaha City Council members have joined a lawsuit launched by the Nebraska attorney general in an attempt to stop the enforcement of the city’s mask mandate.
Council members Brinker Harding, Aimee Melton and Don Rowe announced their participation in the legal action against Douglas County Health Director Lindsay Huse in a press release Friday.
Nebraska Attorney General Doug Peterson earlier this week filed a lawsuit against Huse and other county and city officials challenging Huse’s indoor mask mandate for Omaha.
In their press release, the council members stated that, “By unilaterally decreeing a mask mandate, Dr. Huse has levied a substantial and invasive burden on the citizens of Omaha without the consideration and approval of their democratically-accountable representatives on the Council and in the Mayor’s office.”
The council members also allege that Huse “has assumed for herself a legislative function and usurped the City Council’s legislative power.”
Douglas County District Judge Shelly Stratman has scheduled a hearing on the lawsuit for 10 a.m. Jan. 24.
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 Omaha city limits. There are several exceptions where the mandate does not apply.
Peterson is seeking a temporary and permanent injunction declaring the mandate “void and unlawful.” He argues that Huse did not have “jurisdiction or authority” to issue the mandate.
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 announcing the mask mandate, Huse said it was needed to slow transmission of the omicron variant of COVID-19. She cited an “astronomical spike in cases” that is threatening to overwhelm already strained hospitals and health care workers.
Following the announcement, Dr. Mark Rupp, chief of the University of Nebraska Medical Center’s infectious diseases division, said the mandate would help slow the increase in COVID-19 cases and cushion the blow on the metro area’s health system.
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 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 Nebraska Department of Health and Human Services and Director of Public Health Dr. Gary Anthone’s right to approve or disapprove measures issued by county health departments.
Anthone is one of the plaintiffs in the suit, which says Huse’s authority to issue a mask mandate under Omaha’s municipal code “conflicts with applicable state law.”
Peterson also named 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.
The three city council members’ involvement in the suit pertains only to Huse.