A Taney County judge has dismissed a lawsuit brought against the city of Branson for its face covering mandate.
On Tuesday, Taney County Circuit Judge Jeff Merrell dismissed the case, which was filed earlier this month by Springfield attorney Kristi Fulnecky on behalf of two Branson businesses. The plaintiffs were seeking court intervention against a city ordinance that mandates the wearing of face coverings within the city limits.
According to an online docket, the judge ruled that the city has “sovereign immunity” over the claims made in the suit.
According to the docket: “There exist no allegations brought by Plaintiffs that these aldermen acted in anything other than their legislative capacities as aldermen serving on the City of Branson’s legislative body. Missouri law is clear that those individual aldermen for the City of Branson have absolute immunity for their legislative duties and respective votes described in and pleaded in Plaintiff’s Petition, and Plaintiffs’ claims against those individuals are hereby dismissed.”
It also stated that the plaintiff’s complaint “failed to raise a valid Constitutional challenge to the Branson ordinance at issue.”
Branson City Attorney Chris Lebeck issued the following statement regarding the ruling: “I appreciate the decisive action of the Taney County judiciary in dismissing this action against public health and safety. The thoughtfulness of the judge in his analysis of the law and review of the arguments presented is a testament to the quality of the judiciary that we are blessed with in Southwest Missouri.”
Fulnecky issued the following statement:
“Today the District Court in Taney County dismissed the Branson mask mandate lawsuit because of sovereign immunity and citizens not being able to sue the government, namely municipalities in this case. Plaintiffs argued that the government can’t hide behind sovereign immunity when violating citizens’ state and federal constitutional rights.
“The Missouri Department of Health is reporting that there have been only 3 Covid deaths in Taney County but the Taney County Health Department is reporting 16 deaths. There are either 3 or 16 Covid deaths out of a population of 55,928 in Taney County. The City of Branson has not reported any deaths from Covid. Although tragic, these low death numbers do not justify the government overreach or violating the other Taney County residents’ constitutional rights in such a drastic manner. You are more likely to be struck by lightning in your lifetime than to die of Covid in SW Missouri. Additionally, the daily death rate in Missouri has been dropping. This pandemic is almost over but some are still talking about increasing infections and not emphasizing the increased frequency of testing. There is no reporting on asymptomatic and symptomatic numbers and the propaganda outlets are not reporting that over 99% of the people recover who are infected.
“We are disappointed that the district court case was dismissed, but as was stated in this morning’s hearing, a Section 1983 complaint will be filed in federal court where sovereign immunity will not be an issue. We remain hopeful the court will rule in our favor after this case is litigated. The majority of citizens are against this mask mandate and we will continue to fight to make their voices heard in court – as their voices were silenced locally by the Branson City Council.”
The Branson aldermen approved its face covering mandate on July 28 by a 4-1 vote. It went into effect July 31 and will remain in effect through Sept. 8 when the aldermen can extend it or let it expire.
Fulnecky filed a lawsuit on Aug. 6 on behalf of Jamie Hall, owner of Branson Etched Mugs (an online business that rents open retail space within the city), and Bo Dejager, owner of Foam Bros (an insulation contractor). The suit named as defendants the city of Branson and the four aldermen who voted in favor of the mandate.
On Aug. 14, the judge declined to issued a temporary restraining order against the city’s mandate.
Forsyth and Branson West have also approved face covering mandates.
In Branson West, the mandate went into effect Aug. 12 and will remain in effect “for up to three successive 30-day periods, unless rescinded earlier,” according to city documents.
Forsyth’s face covering mandate went into effect July 22 and will remain in effect until it is modified or rescinded.