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'She has no such power'; Judge hears Omaha mask mandate case

State argues health director lacks authority to require masks
Posted at 6:37 PM, Jan 24, 2022
and last updated 2022-01-28 16:27:23-05

OMAHA, Neb. (KMTV) — The fate of Omaha’s mask mandate now rests in the hands of a Douglas County Court judge.

Nearly two weeks ago, Douglas County Health Director Dr. Lindsay Huse issued a four-week mask mandate for the City of Omaha.

But the State of Nebraska believes she lacks authority to do so.

After a quick lawsuit from the Nebraska Attorney General, it’s up to Judge Shelly Stratman on whether that mandate will stick around until a trial on the case can occur.

Gov. Pete Ricketts and his Department of Health and Human Services have said they’re against mask mandates and would deny any county health department that sought one.

Therefore, the attorneys representing Dr. Huse told Judge Stratman that the health director was operating on authority from the City of Omaha when she issued a mask mandate for Omaha.

The state disagreed with this.

Jim Campbell with the Nebraska Attorney General’s office argued for a temporary injunction on Dr. Lindsay Huse’s mask mandate order, seeking to halt it until a full trial can take place.

His argument centered on her authority, saying the part of city code she is using to issue the mandate can only be done by the county health director, and according to state law, the state needs to approve of a mask mandate from counties, which the state refuses to do.

“She claims authority to issue these emergency measures as a City of Omaha Health Director, but she has no such power,” said Campbell.

But Ed Fox, an attorney for Dr. Huse, said the state was arguing semantics. He said she is using power directly given to her by the City of Omaha, under its charter.

“The title doesn’t matter, what matters is the authority being exercised, the authority that comes from and whether that authority was validly granted under Nebraska law,” said Fox.

The state was also joined by the three Republican Omaha City Council members who oppose the mandate and are listed as intervenors in the case.

Their attorney Dave Lopez argued a different point than the AG’s office.

He pointed to the mask mandate the city council passed in February of 2021, specifically the provision that states when it sunsets and that only the city council can bring it back.

“Dr. Huse or her office once had the authority under the general powers to do a mask mandate. That power evaporated when the city council reclaimed that power in the mask mandate through Chapter 12 (of the Omaha City Charter),” said Lopez.

Huse's attorney responded by saying the state is misreading the text. He said it also doesn’t specifically say Huse cannot issue a mandate.

“Nothing in those sections implies it was exclusive authority; that the city council intended to take exclusive authority,” said Fox.

The state also argued another part of state law that says Huse is required to give her entire time to the duties of Douglas County, saying she either worked for the city and broke that law, or only worked for the county and never had authority for a mandate.

“Either way she loses, the violation and acting beyond her authority is clear,” said Campbell.

Judge Stratman said an order would be issued by no later than noon on Tuesday.

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