After court ruling, Moody jumps into Florida’s mask mandate legal fight

The Republican attorney general said parents must have the ability to opt their kids out of mask requirements
Florida Governor Ron DeSantis listens to Florida Attorney General Ashley Moody during a press conference in Orlando, Fla., Thursday, Aug. 26, 2021.
Florida Governor Ron DeSantis listens to Florida Attorney General Ashley Moody during a press conference in Orlando, Fla., Thursday, Aug. 26, 2021. [ JOE BURBANK | AP ]
Published Sept. 1, 2021|Updated Sept. 2, 2021

TALLAHASSEE — Attorney General Ashley Moody on Wednesday injected her legal opinion into Florida’s ongoing court battle over school mask mandates, adding noise to an increasingly political fight.

Moody, a Republican ally of Gov. Ron DeSantis, said school districts must comply with a state rule that says parents must have the ability to opt their kids out of mask requirements “unless and until the judiciary declares them invalid.”

Her legal opinion comes days after a Leon County judge ruled that DeSantis and his administration “acted without legal authority” when issuing and enforcing a blanket ban on mask mandates. The ruling was delivered orally and is not effective until written and filed. As of Wednesday evening, no ruling has been filed, which has given an opening to DeSantis and his administration to act.

Minutes after Moody published her legal opinion, the Florida Department of Education issued a statement that said her legal opinion proves districts have broken the law and need to follow state orders because “the judiciary has not declared the rule to be invalid.”

“Today, the department is urging every school district that has mandated masks without an opt out to promptly change its policies and comply with Florida’s rules and laws,” said Department of Education spokesman Jared Ochs, who did not immediately respond when asked if the state agency coordinated with Moody’s office.

13 districts defying the state’s order

Thirteen of Florida’s 67 school districts have imposed temporary strict mask mandates to prevent the spread of COVID-19. Two districts — Broward and Alachua — have been sanctioned as a result of requiring parents to provide a doctor’s note before they can opt out of masking requirements. Eight others districts, including Miami-Dade and Hillsborough, have been told by the state they are in non-compliance and could face sanctions.

Charles Gallagher, the lead attorney for the plaintiffs in the mask mandate case, said he believes the state is acting inappropriately. He said there is legal precedent that “holds an oral ruling valid and enforceable” until the time it is memorialized in writing.

Gallagher said both parties have the transcript of Cooper’s ruling, therefore, he argued, the state “cannot claim confusion” and defy the court order.

“I don’t believe it’s appropriate to defy the court’s oral ruling,” Gallagher said in an email to the Herald/Times on Wednesday.

Cooper ruled Friday that DeSantis exceeded his authority in barring universal mask mandates when he issued an executive order that drew its authority from portions of the Parents’ Bill of Rights. The law was approved by the Republican-dominated state Legislature and signed by the governor on June 29.

DeSantis was unable to wield his emergency power under state law to issue the executive order, Cooper added, because he had already allowed the COVID-19 state of emergency to lapse a month before he issued it. So, Cooper said, the governor has to rely on the written language of the new law.

The law says the state is not allowed to “infringe on the fundamental rights of a parent” to direct the upbringing, education, health care, and mental health of a child “without demonstrating that such action is reasonable and necessary to achieve a compelling state interest.”

Legal limbo until order is written, final

Cooper argued the governor and his administration used the first half of the statute, but not the second part when issuing an executive order and subsequent rules that barred districts from imposing strict mask mandates. Therefore, he said, the state’s mask orders were unlawful and districts could continue enforcing their mask mandates if they proved they were reasonable as the full law intends.

“My ruling in this case, if you want to put it in one sentence, is, I am enforcing the bill passed by the Legislature and requiring that anyone who uses that bill to follow all provisions and not part of the provisions,” Cooper said.

The problem is the ruling is in somewhat of a legal limbo. Cooper said his ruling would not be effective until it is written and filed. The attorneys representing the state made a point of asking Cooper to clarify that was the case.

Additionally, DeSantis and the Department of Education have said they intend to appeal immediately.

In her legal opinion, Moody noted an appeal would grant an automatic stay on the ruling unless a court vacates the stay. In other words, once the state appeals, and it intends to do so, Cooper’s ruling will be paused and the governor’s executive order will go back into effect and the state will enforce it, unless a court says otherwise.

That means the status quo could remain in place as 13 Florida school districts defy the governor’s mask orders by requiring a doctor’s note before kids can opt out of a mandate.

Education Commissioner Richard Corcoran on Monday announced that he has begun withholding money from the Broward and Alachua school districts, which imposed stricter mask mandates than the governor wanted.

Broward and Alachua were the first to go through the state’s inquiry process over the issue. But eight other districts, including the largest ones in the state — Miami-Dade, Hillsborough, Palm Beach, Duval and Orange counties — have been asked by the state to respond this week on whether they intend to reverse course or not.

Their deadline to reply was 5 p.m. Wednesday.

Tampa Bay Times reporter Jeffrey S. Solochek contributed to this report.