By Ryan Dailey, The News Service of Florida
TALLAHASSEE — A Leon County circuit judge on Wednesday again blocked Gov. Ron DeSantis’ executive order that seeks to bar school mask mandates, giving at least a temporary victory to parents challenging the order.
Judge John Cooper issued a written ruling last week that said DeSantis’ had overstepped his constitutional authority in the executive order. The DeSantis administration quickly appealed to the 1st District Court of Appeal, triggering an automatic stay of the ruling while the case moves forward
But Cooper on Wednesday vacated the automatic stay, meaning that his ruling last week is in effect and school districts can continue with student mask requirements as they try to prevent the spread of COVID-19.
“There’s clear record evidence in the 1st District (Court of Appeal) within the last year to set aside stays. It should be not a usual thing, it should be not a normal thing. But we’re not in normal times, we’re in a pandemic. We have children who can’t be protected by vaccination,” Cooper said.
The battle now shifts to the Tallahassee-based appeals court, which could reinstate the stay and also will consider Cooper’s underlying ruling on the executive order. As part of his ruling last week, Cooper issued an injunction blocking state education officials from enforcing DeSantis’ order.
Attorneys representing the parents sought to vacate the stay, which set up Wednesday’s hearing.
“Allowing for a stay for days, for weeks or months during the appellate process, will mean more sick and dead children in Florida schools,” said Charles Gallagher, an attorney representing the group of parents. “Vacating the stay will permit (school) boards to mandate masks as a public health measure and save lives.”
Attorneys representing DeSantis, the state Department of Education and Education Commissioner Richard Corcoran argued Wednesday that Cooper’s written judgment was the first of its kind to deal with a new state law known as the “Parents’ Bill of Rights.” DeSantis, in part, based his order on the law.
Michael Abel, an attorney who represents the DeSantis administration, argued that Cooper would have no way of determining the likelihood of the state succeeding on appeal in a “case of first impression” involving the law.
Cooper’s judgment said state education officials violated the Parents’ Bill of Rights, which deals with parents’ right to control education and health decisions for their children. He said officials did not allow school districts due process to prove that enacting mask mandates was reasonable and necessary.
But in arguing against vacating the stay, Abel contended that courts should defer to “governmental planning decisions” in the interim as the appellate court weighs the case.
“The (circuit) court made its best judgment based on what it saw and what it heard. Maybe your honor got it right, or maybe your honor got it wrong. We’ll see,” Abel said.
Cooper asserted that he has made decisions in the mask lawsuit and other cases based on his interpretation of laws. He listed other cases in which he has ruled in favor of governors.
“If you look at my record, it’s not somebody who runs all over the place, ruling against the governor. What it is, I think, is a record of somebody who tries to figure out what the law is and rule according to the law. Because that’s my job. I’m not a policymaker,” Cooper said.
Before Cooper vacated the stay Wednesday, DeSantis said during a press event that he expects a higher court to reinstate the stay and put his executive order back into effect.
DeSantis also maintained that he is confident the state will prevail in the appellate court, which is filled with Republican appointees.
“But what we found is, you know, in the trial courts in Tallahassee, state and federal, we typically lose if there’s a political component to it, but then in the appeals court, we almost always win,” the governor said.
While the appellate court takes up Cooper’s decisions, the DeSantis administration also is facing legal challenges in federal court and the state Division of Administrative Hearings over the executive order and a related Department of Health rule.