By Nathan Hale

Law360 (June 14, 2021, 10:00 PM EDT) -- Florida's First District has revived a resident's bid for an emergency injunction to block Alachua County's COVID-19 mask mandate, finding in a split decision that the trial court failed to apply the proper review based on privacy rights in the state constitution.

Although two of the three judges on the appellate panel found Friday that the Florida Supreme Court's 2017 decision in Gainesville Woman Care LLC v. State meant that the lower court should have applied strict scrutiny and required the county to prove the measure was narrowly tailored to address a compelling governmental interest, the controversial issue significantly divided the court, with all three judges taking distinct positions in separate opinions.

In the majority opinion, Judge A.S. Tanenbaum, who spoke critically of the mandate, found the state's highest court has construed a fundamental privacy right so broad that strict scrutiny clearly applies and requires the trial court to presume unconstitutionality in its review. In sharp contrast, Judge Joseph Lewis Jr. concluded the privacy right is not implicated and said the case should be dismissed as moot because the mandate has been lifted. Falling somewhere in between, Judge Robert E. Long Jr. concurred with Judge Tanenbaum's application of Gainesville Woman Care, but expressed concern that the issue falls outside of what the judiciary branch should be deciding.

The state Supreme Court's ruling in Gainesville Woman Care found that a law requiring a mandatory 24-hour delay between a woman's decision to have an abortion and the procedure infringed on women's privacy rights.

Adding another wrinkle to the matter is the question of possible mootness, with the majority opinion noting that plaintiff Justin Green had even suggested this to be the case following a May 3 executive order from the governor that blocked the mandate's renewal.

"We remand for a new proceeding that presumes the unconstitutionality of the mask mandate, in the event there still is some mask mandate that remains to be litigated," the majority opinion said.

In his suit, Green argued that the northern Florida county's mandate that he wear a facial covering in certain public settings violated his fundamental right to privacy under Article I, section 23 of the Florida Constitution, and he moved for an emergency temporary injunction to halt its enforcement, according to the opinion.

The trial court denied the injunction request, finding the mask requirements did not violate any constitutional rights and that Green failed to meet the requirements for a temporary injunction to show a clear legal right to the requested relief, a lack of an adequate remedy at law, a likelihood of irreparable harm and that an injunction would serve the public interest, the opinion said.

In his opinion, Judge Tanenbaum described the county's emergency order and its renewals in negative terms, labeling them as "diktats" and "fiats" that placed residents like Green "under the yoke of a mask mandate" and encouraged residents to be "whispering informants" against violators.

He rejected the idea that the issue is moot, saying that the mask mandate "until recently seemed like it might never end" and pointing out that the governor's recent order allows the county to enact similar restrictions through regular ordinance procedures.

In Gainesville Woman Care, he said, the Florida Supreme Court said "multiple times" that when privacy rights are at issue, a plaintiff seeking a temporary injunction "does not bear a threshold evidentiary burden to establish that a law intrudes on his privacy right … if it is evident on the face of the law that it implicates this right."

The justices also construed the right to be let alone by the government in Article I, section 23 "to be so broad as to include the complete freedom of a person to control his own body," Judge Tanenbaum said, making it clear it is implicated by the county's mandate.

Judge Tanenbaum stressed, however, that although the appeals court found there should be a presumption of unconstitutionality in the injunction review, it was not saying the mandate is in fact unconstitutional.

In the dissent, however, Judge Lewis said the Florida Supreme Court has made clear that the state's privacy right is not a guarantee against all intrusion and the majority is fatally flawed because it ignores the circumstances surrounding Alachua County's action.

Judge Lewis also slammed the majority's reliance on the Gainesville Woman Care decision.

"It would be irrational, and downright repugnant, to liken a woman's fundamental right to choose to end her pregnancy or an unnecessary interference with that right, which is indisputably a deeply personal decision and involves bodily integrity and personal autonomy, to a requirement that a person wear a facial covering when interacting with members of the public during a pandemic so as to curtail the spread of a contagious virus," he said.

Instead, he said the Fourth District's ruling in Mahovec v. Palm Beach County was on point in upholding Palm Beach County's mask mandate based on a finding that it did not implicate a constitutional right to choose or refuse medical treatment.

"The mask mandate is in no way an attempt by the government to control a person's body, as found by the majority. The mask mandate is not compelled medical treatment, and the wearing of facial covering does not alter one's physical person," Judge Lewis said. "Rather, the mask mandate is a temporary and de minimus interference with a person's public interactions in response to a global pandemic."

In his concurrence, Judge Long cautioned that the inquiry "at its core" is about separation of powers and that Green's challenge asked the courts to intervene in the political process and affirmatively prevent the county's action.

"This constitutional structure works only if the courts do not stray beyond those judicial acts that require only legal competence and impartiality," he said. "This case is a reflection of that problem. Both the majority and dissenting opinions spend much of their time struggling with whether this particular government intrusion is reasonable. That struggle speaks to the failings of our current jurisprudence and what it requires of judges."

Counsel for Green and Alachua County did not immediately respond to requests for comment late Monday.

Green is represented by Seldon J. Childers and J. Eric Hope of Childers Law LLC.

Alachua County is represented by Jack M. Ross and Krista L.B. Collins of Siegel Hughes & Ross.

The case is Green v. Alachua County, case number 1D20-1661, in the First District Court of Appeal of Florida.

--Editing by Jill Coffey.

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