Baker mask mandate, no longer in effect, facing challenge

SJC case brought by Lynn business owner who was shut down

THE STATEWIDE MASK mandate is no longer in effect, but litigation over it continues.

The Supreme Judicial Court on Wednesday will hear oral arguments in a case challenging Gov. Charlie Baker’s legal authority to require mask-wearing inside private businesses. The case involves Arianna Murrell, who banned the use of masks inside her Lynn tax preparation business, Liberty Tax Service.

While the state argues that the case is moot because the mandate is no longer in effect, attorneys for Murrell said the case remains relevant since Baker could reimpose a mandate at any time.

“It is clear based upon announcements by the governor that any orders may at any time be reinstated,” attorney William Gens, who represents Murrell, wrote in a court brief.

Several prior lawsuits have challenged Baker’s emergency COVID-19 orders, and the courts have generally upheld the governor’s authority to impose societal restrictions during the pandemic in order to maintain public health.

The question here is whether the Occupational Health and Safety Act, OSHA, preempts the governor’s authority to establish workplace safety laws.

Murrell says her company followed all federal workplace safety standards, which did not require the use of face coverings for workers or patrons. She argues that the Lynn Board of Health should not have been allowed to shut her business down for not complying with the state mask mandate.

Gens wrote in a court brief that Murrell tried providing disposable masks, but some employees developed allergic reactions, and clients complained they had trouble breathing. When several clients were in the office and the heat was on, they noticed a chemical smell, and Murrell and others felt faint, due to a particular material in the masks. According to a brief filed by the Lynn Board of Health, Murrell then not only banned masks from the business, she confiscated masks from customers when they entered.

The police responded to several COVID-related complaints at the business. The Board of Health fined Murrell several times, then ordered the business to close. Murrell is appealing the fines in Lynn District Court.

A Middlesex Superior Court judge found in favor of Lynn’s Board of Health and upheld its authority to enforce the state mask mandate.

Attorneys for the city of Lynn say the case is moot because the state of emergency and mask mandate have been lifted.

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Shira Schoenberg

Reporter, CommonWealth

About Shira Schoenberg

Shira Schoenberg is a reporter at CommonWealth magazine. Shira previously worked for more than seven years at the Springfield Republican/MassLive.com where she covered state politics and elections, covering topics as diverse as the launch of the legal marijuana industry, problems with the state's foster care system and the elections of U.S. Sen. Elizabeth Warren and Gov. Charlie Baker. Shira won the Massachusetts Bar Association's 2018 award for Excellence in Legal Journalism and has had several stories win awards from the New England Newspaper and Press Association. Shira covered the 2012 New Hampshire presidential primary for the Boston Globe. Before that, she worked for the Concord (N.H.) Monitor, where she wrote about state government, City Hall and Barack Obama's 2008 New Hampshire primary campaign. Shira holds a master's degree from Columbia University's Graduate School of Journalism.

About Shira Schoenberg

Shira Schoenberg is a reporter at CommonWealth magazine. Shira previously worked for more than seven years at the Springfield Republican/MassLive.com where she covered state politics and elections, covering topics as diverse as the launch of the legal marijuana industry, problems with the state's foster care system and the elections of U.S. Sen. Elizabeth Warren and Gov. Charlie Baker. Shira won the Massachusetts Bar Association's 2018 award for Excellence in Legal Journalism and has had several stories win awards from the New England Newspaper and Press Association. Shira covered the 2012 New Hampshire presidential primary for the Boston Globe. Before that, she worked for the Concord (N.H.) Monitor, where she wrote about state government, City Hall and Barack Obama's 2008 New Hampshire primary campaign. Shira holds a master's degree from Columbia University's Graduate School of Journalism.

If the SJC does consider the substance of the issue, Assistant City Solicitor James Wellock says the trial court judge was right in finding that there was a public interest in enforcing the mask mandate. Wellock wrote in a brief that because there is no OSHA standard specific to COVID, federal law does not preempt state rules. And, he added, a municipal enforcement action is not the “proper place to mount a full-blown inquiry into the underlying merits of government policy.”

Attorney General Maura Healey, arguing on behalf of the Commonwealth, said in a court brief that the case is moot because the mandate was lifted. “It is sheer speculation…to suggest that Governor Baker might again declare another state of emergency under the Civil Defense Act and again rely on that emergency authority to mandate the wearing of face coverings in indoor places,” Healey wrote.

Healey adds that it is clear the state had authority to issue the regulation and Lynn was justified in enforcing it.