June 12, 2021 | Scott Morefield | TownHall.com | Source
Source: AP Photo/Nam Y. Huh
“A Florida appellate court delivered a devastating blow to government-induced forced public masking in the state on Friday with a narrow 2-1 decision that finally took into account citizen privacy rights that have often been ignored throughout the pandemic.
In overturning and sending back for reconsideration the decision of a circuit judge in favor of Alachua County’s mask requirement, the 1st District Court of Appeal panel cited the state Supreme Court’s interpretation of privacy rights “so broad as to include the complete freedom of a person to control his own body,” Fox13 reported.
A panel of the 1st District Court of Appeal, in a 2-1 decision, said Alachua County Circuit Judge Donna Keim did not properly consider the privacy rights of plaintiff Justin Green before she rejected a request for a temporary injunction against the mask requirement.
“The trial court simply looked at the right asserted by Green too narrowly, relying on the wrong privacy jurisprudence,” said the 13-page majority opinion, written by Judge Adam Tanenbaum and joined by Judge Robert Long. “The right to be let alone by government does exist in Florida, as part of a right of privacy that our (Florida) Supreme Court has declared to be fundamental. … (The Supreme Court) has construed this fundamental right to be so broad as to include the complete freedom of a person to control his own body. Under this construction, a person reasonably can expect not to be forced by the government to put something on his own face against his will. Florida’s constitutional right to privacy, then, necessarily is implicated by the nature of the county’s mask mandate.”
The majority stopped short of declaring the Alachua County requirement unconstitutional but sent the case back to the lower court for reconsideration.
Judge Joseph Lewis’ 15-page dissent predictably appealed to forced masking as a “temporary and de minimus interference with a person’s public interactions in response to a global pandemic,” but Tanenbaum and Long – both appointed to the bench by Republican Florida Gov. Ron DeSantis – carried the day.
While Lewis also tried to argue that the case was moot because DeSantis’ executive order in May preventing local governments from requiring masks, the majority pointed out that counties could always reissue orders at a future time.
“Because of the nature of the various emergency orders that we have seen and the county’s continued commitment to public mask wearing, we are not convinced that this is the last that we will see of this issue,” Tanenbaum wrote in a footnote.
Later in the opinion, however, the majority appeared to acknowledge that the circuit judge might not have a case to reconsider.
“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 opinion said.
… Green, who operates a nursery business, took the lawsuit to the Tallahassee-based appeals court after Keim refused to grant a temporary injunction in May 2020.”