In a 36-page response filed in court on Tuesday, four attorneys for Governor John Carney from the state’s Department of Justice say there is no legal ground for Hockessin attorney and Mom, Janice Lorrah, to sue over his mask mandate for school children.
The attorneys are asking the court to deny Lorrah’s preliminary injunction.
“Lorrah’s Motion must be denied because the balance of equities weighs strongly against the harm an injunction would cause to the public interest” attorneys argue in the court document, obtained by TV Delmarva.
In the response, attorneys defend Carney’s implementation of the mandate to expire March 31 on the basis that COVID-19 is dangerous, but acknowledge that he has no legal ground to extend past March 2 because of the Emergency Powers Act limit of power expiring on that day.
“The Fourth Revision advised that the Governor intended the mask mandate to be effective until March 31, 2022. However, the Governor acknowledges that the Fourth Revision has no legal effect after March 2, 2022 unless he takes further action. Thus, there is no controversy between the parties on Lorrah’s Date Claim.”
However, attorneys argue that the Governor could simply extend the state of emergency and the date in question would never ripen.
“Emergency powers are not an unlimited form of fiat that allows the executive branch to legislate without regard to procedural and constitutional protections,” Lorrah says in a response filed today in court. “This
is not a political point of view; it is a question of fundamental liberties and government overreach.”
Lorrah continues to say that “[Governor Carney] picked the March 31, 2022 school masking end date
(beyond the duration of the current State of Emergency and beyond the 180-day limit of the APA emergency rule making authority) hoping that it would go unnoticed and now that his actions have been brought to light, all of the Defendant’s arguments based on post hoc rationalization.”
Governor Carney also contends that Lorrah has no evidence that her or her child has suffered damages because of his mask mandate. In addition, attorneys cite CDC evidence that masks cause no harm to children.
“There is far from a scientific consensus on this difficult and novel issue,” attorneys argue. “Indeed, the CDC continues to recommend “universal indoor mask use for students, staff members, and others in kindergarten through grade 12 (K-12) school setting” regardless of vaccination status. The CDC also continues to monitor and analyze research studies, including research indicating that “masks are unlikely to produce serious impairments of children’s social interactions.” The CDC has found that “[t]he limited available data indicate no clear evidence that masking impairs emotional or language development in children.”
Governor Carney’s attorneys also argue that because of the public health risk of COVID-19, the general public far outweigh any individual issues as grounds for dismissal of the suit. They argue that invoking an injunction would “subject Delaware’s school system to undue hardship and risk.” Lorrah contends that due to establishing reasonable probability, the injunction should stand.
A court date is set for Monday, February 28 at 9:00 a.m. at the Leonard L. Williams Justice Center in Wilmington.
