Butler County parents, among others, prevailed Wednesday in a case challenging the state's power to impose a mask mandate in K-12 schools and child care facilities.

An order by Pennsylvania's acting health secretary that required the masks in the facilities was thrown out by a Commonwealth Court decision that said the state lacked the authority to impose the mandate.

“We declare the masking order void ... and unenforceable,” Judge Christine Fizzano Cannon wrote in the 4-1 decision.

The decision said the state's disease control law does not give health secretaries “the blanket authority to create new rules and regulations out of whole cloth, provided they are related in some way to the control of disease or can otherwise be characterized as disease control measures.”

Acting Health Secretary Alison Beam issued the mask mandate Aug. 31. It went into effect Sept. 7.

It required every teacher, student, staff member and visitor working, attending or visiting a school to wear a face mask, regardless of vaccination status.

Within hours of the decision, it was put on hold when health department lawyers filed an appeal to the state Supreme Court. The mandate will remain in effect through the appeal process.

'Right decision'

“It's the right decision,” said attorney Thomas King III on behalf of the plaintiffs. “It's a great day for the rule of law in Pennsylvania.”

Seven of the nine parents listed as plaintiffs, not including two legislators, are Butler County residents whose children attend schools, including Butler Area School District, Slippery Rock Area School District and Calvary Academy.

King said the court's decision doesn't question the efficacy or validity of the use of masks.

“It was never about the masks,” King said. “This case from the beginning was about whether the health secretary had the power to impose this order.”

King said Beam ignored proper channels when administering the mandate. He said this is evidenced by some inclusions in the order, including the ability for children to use clothing as masks and the prohibiting of their use of N-95 masks, reserving them for health care professionals.

“They came down with this masking order that made no sense,” King said.

King said Beam's mandate should have been subjected to proper channels for review, which would have included the public's input.

“She didn't follow any of those,” King said.

On Monday, Gov. Tom Wolf said he intends to turn over decisions about masking to local school officials starting Jan. 17.

However, the acting secretary's current mask mandate would remain in place for early learning programs and child care facilities.

The state's position

The state's attorneys argued certain authorities are written into law for the position, allowing Beam to bypass these procedures.

“The secretary of health's authority is clearly outlined in existing law,” Elizabeth Rementer, press secretary for the governor's office, said.

In Wednesday's decision, Cannon picked apart the argument by noting the mandate was more forceful than was intended by the cited exemptions.

“There is no palatable argument that this order is mere guidance,” Cannon said. “The masking order has the force and effect of law.”

Cannon said in doing so Beam is attempting to exact a “new binding norm.”

“As such, if not already authorized by statute or regulation, and in the absence of a disaster emergency declared by the governor, the masking order represents a regulation subject to the requirements of the commonwealth documents law and the regulatory review act,” she wrote.

The state's attorneys made other accessory arguments, citing the acting secretary had the authority to pass the mandate unchecked; however, Cannon said, it did not entitle Beam to ignore procedure.

“The masking order states that these authorities allow the department to implement any disease control measure appropriate to protect the public from the spread of infectious disease,” Cannon said. “We do not agree.”

King said he anticipated the appeal and plans to quickly file an injunction against the automatic staying function of the state's appeal. He said he remains confident in his clients' case.

“The Commonwealth Court has told the governor he needs to follow the rule of law,” King said.

Tom Breth, the South Butler County School District solicitor, recommended at Wednesday's school board meeting that the district and all districts continue to follow the mask mandate until a decision is made on the appeal.

David Foley, South Butler superintendent, said a letter will go out to parents on Thursday alerting them that the mask mandate remains in effect in the district.

“We know everyone is eager to get the mask off,” Foley said.

Eagle staff writer Paula Grubbs contributed to this report.