A judge has issued an early blow to the Douglas County Health Department in a lawsuit that alleges the agency was illegally formed and its order hollowing out mask requirements is illegitimate, in the latest burst of courtroom drama in a county divided over masking and the COVID-19 pandemic.

The lawsuit was filed in early January by a Montessori school director and a salon owner, both of whom wanted to keep universal mask orders but were barred from doing so by the county’s newly formed health department. In one of its first acts, the health department’s board voted in early October to require any entity with mask requirements to allow for exemptions, an order that triggered an immediate and successful legal challenge by the Douglas County School District.

District Judge Jeffrey Holmes has now handed the Montessori school and salon an early victory: On Friday, he temporarily blocked the health department from enforcing its mask-loosening order, effectively clearing the way for any entity in the county to institute a universal mask requirement for the time being, while the rest of the case is litigated.

Holmes is also overseeing another contentious Douglas County issue: the lawsuit filed by a resident against the school board, alleging its four leaders broke Colorado’s open meeting law in the lead up to Douglas County School District Superintendent Corey Wise being fired. Holmes is considering whether to issue a similar injunction in that case, which would bar the board from communicating in one-on-one but linked conversations.

Igor Raykin, one of the attorneys for Curl Up-N-Dye salon owner Becky Henderson and Montessori director Anitha Harshan, called Holmes’ ruling on the mask order surprising and “courageous,” given the charged political climate around face-coverings in Douglas County.

Henderson, who said she has three autoimmune diseases and is the breadwinner for a household of 10 people, said the order shouldn’t have been instituted in the first place and she should have the ability to require masks if she wants to.

She said she shouldn’t be punished “because I want to protect my community. I shouldn’t have the threat of going to jail because I want to make sure I don’t die and no one comes out of my salon that could get sick. That was a big deal to me.” Holmes appeared to agree.

“If charged criminally for failing to comply with the exemption requirements of the Order,” Holmes wrote, “(Henderson and Harshan) face punishment, including jail, that cannot be recompensed and the cost of legal defense for which the government would not be liable. If (they) were compelled to close their businesses because of unwillingness to risk the dangers of unmasked patrons, they face a potential loss of business that would be difficult to quantify and employees would lose their employment. If Plaintiffs comply with the Order, they face compromising their health, that of their families, their employees and their customers.”

Doug Benevento, the president of county’s Board of Health, said the nowblocked order “does not prohibit local businesses — nor anyone else — from mandating masks and (is) consistent with good public health practices,” but the order “requires businesses to allow individual exemptions for health reasons.”

He noted that the lawsuit still has to be litigated; Holmes’ order is temporary while that happens. The rest of the litigation will be no less contentious:

The suit alleges that the health department was illegally formed.

Up until September, Douglas County was part of Tri- County Health, the largest, county-level health department in the state. But after a public fight over masks in school, the county’s commission voted to pull out and form its own agency, which it swiftly did. But under state law, a county must give one year’s notice before leaving a health department like Tri- County.

Douglas County did serve notice in July 2020. But four months later, it rescinded it, according to court documents. Almost a year later, in September 2021, it formed its new health department and signed a deal with Tri- County — which will cease to exist as it does now on Jan. 1, 2023 — to continue providing some services. That agreement also attempted to waive the one-year provision, the suit alleges.

But, Raykin and co-counsel Michael Nolt allege, that’s not sufficient, and Holmes, the Douglas County judge overseeing the case, appears to have agreed that the argument has legitimate and potentially correct merits.

Asked if she was happy with Holmes’ ruling, Henderson said: “It shouldn’t have been a thing to begin with,” referring to the health department’s order. She said she’s received threats and some have come to her business to make their disagreement known.

“We have had clients that refuse to come to us because we wear masks,” she said, “but we’ve had a lot more come to us because we wear masks. There is no way to social distance, no way to do my job from home. There’s no way to protect the public and still make sure they’re beautiful. That’s just part of our job. We have to touch people.”