photo by: Mackenzie Clark

The Douglas County Judicial and Law Enforcement Center, which houses Douglas County District Court and a number of other criminal justice services at 111 E. 11th St., is pictured April 8, 2020.

Updated at 5:02 p.m. Wednesday

A Baldwin City resident recently filed a petition in Douglas County District Court to challenge a mask mandate for children under the age of 12, alleging that the mask requirement causes her child “severe anxiety, stress and a lack of concentration.”

Marie Taylor, the mother of a 9-year-old, filed the petition on behalf of the child, in response to the county’s current mask order, which requires anyone between the ages of 2 and 11 to wear a mask indoors in public settings, including in public school buildings.

The Douglas County Commission issued the order in August, then extended it for 90 days in September because children in that age range were not yet eligible to receive COVID-19 vaccines, the Journal-World previously reported. Douglas County’s health officer, Dr. Thomas Marcellino, said in September that the mask requirement had met the goal of helping keep kids in school and avoided the shutdowns that have occurred in other areas due to COVID outbreaks.

In the petition, Taylor alleges that the mandate interferes with the child’s education because he is required to wear a mask when attending a Baldwin City school, where he receives speech special education services. Despite the child’s alleged issues with wearing a mask, the school district’s special education provider, East Central Kansas Cooperative in Education, told the mother he would be required to wear a mask to receive the services because of the county’s order, according to the petition.

Taylor “has determined that it is in his best interest to refrain from wearing a mask, even though (the child) cannot receive special education speech services at Baldwin Elementary School while not wearing a mask due to the Order,” the petition states.

The county’s order is currently in place until Dec. 22. The petition specifically asks the court to limit the county’s mask mandate to 30 days after issuance, as opposed to the current 90-day order. Under such an order, the mask mandate would have expired last week.

“A 30-day order is more narrowly tailored than a 90-day order, and a 30-day order still allows the Board adequate time to monitor changing conditions and provide for continuous and uninterrupted public health restrictions through successively issued orders as needed,” the petition states.

The county’s mask order includes various exceptions, including youth with a medical condition, mental health condition or disability that prevents them from wearing a face covering; youth who are deaf or hard of hearing, or communicating with a person who is deaf or hard of hearing, among several others.

Joshua Ney, an attorney for Taylor, declined to elaborate on how the mask mandate affects the child, citing the child’s privacy. But he said the purpose of the petition was to “ensure good government and to protect the rights of parents to seek judicial review” of the county’s health order. He acknowledged the petition is asking the court for an order that would still allow the County Commission to issue a new health order 30 days at a time.

“There is no public health basis for an order that lasts 90 days at a time, let alone for the entire school year or indefinitely, as we’ve seen in other counties this fall,” Ney said in an email to the Journal-World. “It’s an easy fix at this point: just review, reissue, revise, or rescind every 30 days as needed, and allow individuals the opportunity to seek judicial review of those decisions. Orders lasting longer than the 30-day review period function as procedural gamesmanship.”

The petition was filed last week and lists the defendants as the Douglas County Commission and Marcellino. As of Wednesday, Douglas County has not filed a response to the petition, according to the court clerk’s office. Karrey Britt, a spokeswoman for the county, told the Journal-World on Wednesday that the county would not comment on pending litigation.

A hearing on the petition is scheduled for Thursday.

The petition specifically notes it was filed in accordance with Senate Bill 40, a new state law that allows residents to challenge county orders such as mask mandates. A provision also requires courts to hold a hearing on the petitions within 72 hours and provide a ruling within a week, or else the plaintiff wins by default, according to the Kansas Reflector.

But that law may currently be in limbo, as the Kansas Supreme Court earlier this week heard arguments on its legality, The Associated Press reported.

However, Taylor’s petition waived the right to a speedy decision because of the ongoing Supreme Court case.