A Hockessin mother has filed a lawsuit in the Delaware Court of Chancery challenging Gov. John Carney’s extension of the state’s school mask mandate.
The universal indoor mask mandate for the general public expired on Feb. 11 following a sharp decrease in cases since the height of the COVID-19 omicron variant surge.
Although that mandate was lifted, Carney extended the mask requirement in public and private K-12 schools and child care facilities until March 31.
Janice Lorrah, who has a 6-year-old daughter in first grade, believes the governor’s actions “violate state statutes and due process,” according to a press release shared Monday.
“This is not about whether masking is good or bad, or whether masks are even effective,” Lorrah said. “It is about following the rule of law.”
A spokesman for the governor’s office declined to comment Wednesday, saying, “We don’t have any comment on this for now considering the active litigation.”
Lorrah alleges that because the regulations were issued on an emergency basis, under the Administrative Procedures Act, or the APA, the regulations are only allowed to last up to 120 days followed by a 60-day extension.
After that point, she says, regulations must go through a public process that includes opportunities for public review and comment.
“Because the APA’s emergency provision allows an agency to adopt regulations without the normal procedural safeguards, such as advance publication and an opportunity for public comment prior to enactment, [the law] expressly limits the time an emergency regulation can stand,” the court filing says.
Lorrah argues that Carney’s order is “an attempt to end-run the limits of the APA.”
However, Carney’s Jan. 3, 2022 State of Emergency declaration includes a clause that says he may suspend the provisions of any regulatory statute to protect public health.
“In the interest of protecting the citizens of this state from a public health threat, the Governor is authorized by law to issue an order reasonably necessary to suspend the provisions of any regulatory statute prescribing the procedures for conducting state business, or the orders, rules, or regulations of any state agency, where strict compliance with such provisions may hinder necessary action in coping with the emergency,” the order says.
That clause will likely be the crux of the governor’s defense.
Lorrah said in an interview with Delaware/Town Square LIVE News that she’s more interested in defending due process.
“Our Founding Fathers were amazing when they came up with this new form of government which included checks and balances within the three branches,” Lorrah said. “At its core, due process means notice and the opportunity to be heard and I just am very scared of having my daughter grow up in a society where everything is done by emergency order and citizens don’t have the right to voice their opinions.”
She said that in the two years since COVID began, none of the governor’s emergency orders have gone through the legislature.
“We didn’t vote for this,” Lorrah said. “Not a single elected official, except for the governor, has voted for this.”
Lorrah called filing the case her “only recourse” after months of filing Freedom of Information Act requests and petitioning elected officials, “only to be ignored.”
The case will be heard on an expedited basis. Vice Chancellor Paul Fioravanti of the Chancery Court has set an in-person hearing on Monday, Feb. 28, 2022 at 9:15 a.m.
The hearing at the Leonard L. Williams Justice Center in Wilmington is open to the public.
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