Baker mask mandate, no longer in effect, facing challenge

The statewide mask mandate is no longer in effect, but litigation over it continues.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While the state argues that the case is moot because the mandate is no longer in effect, attorneys for Murrell said the case remains relevant since Baker could reimpose a mandate at any time.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.

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.

SHIRA SCHOENBERG

 

FROM COMMONWEALTH

Suffolk DA eschews labels: Kevin Hayden, whom Gov. Charlie Baker appointed as interim Suffolk County district attorney, indicates he will run for a full four-year term this fall. In an interview, he seems wary of being pigeonholed. He doesn’t embrace the progressive label of his predecessor, the current US attorney, Rachael Rollins, but he also embraces many of her policies. He acknowledges problems with the Boston Police Department’s gang database, but doesn’t want it shut down.

“I feel I’m going to be part of doing what’s right,” he said. “And I think that a lot of the notions that people are now characterizing as progressive are just the right things to do – whether it’s reducing our carceral footprint, whether it’s equity in our legal system, whether it’s not criminalizing homelessness, poverty, those sorts of things. Those are the right things to do. I don’t think those belong to any party.” 

– Where he falls policy-wise as a prosecutor appears to be somewhere in the middle. “I think too far left and too far right are a dangerous place to be,” he said. Read more.

Baker still a force: A new poll from the MassINC Polling Group indicates Gov. Charlie Baker, even though he isn’t running for reelection, is casting a big shadow in the race for governor. His favorability rating is higher than any of the candidates seeking to replace him and half of Democratic primary voters say they want someone who is ideologically similar to him. Read more.

Lawsuit targets Vineyard Wind: A group representing fishing interests challenges the Biden administration’s approval of Vineyard Wind, alleging the decision was made in haste, improperly downplayed the project’s impact on the fishing industry and North Atlantic right whales, and resulted in a poor deal for US taxpayers. Read more.

Endemic time: Two of Gov. Charlie Baker’s cabinet secretaries urge college and university presidents to ease up on the COVID clampdowns and lead the state into an endemic – “a highly contagious virus that is manageable and allows us to regain a sense of normalcy.” Read more.

No jab, no job: The Baker administration’s vaccine mandate prompts the exit of 1,013 state employees – 2.4 percent of the executive branch workforce. Read more.

OPINION

Dysfunctional drug discount program: Wayne Winegarden of the Pacific Research Institute says a federal program designed to get drugs to patients at discounted prices is instead inflating hospital profits. Four Massachusetts hospitals are participating in the program. Read more.

 

FROM AROUND THE WEB

 

BEACON HILL

Senate Minority Leader Bruce Tarr wants to create a new panel to oversee the state’s recovery from COVID-19. (Gloucester Daily Times)

Gov. Charlie Baker’s budget proposal wants to cut State Police overtime costs by bringing on retired troopers to staff work details. (Boston Herald

Rep. Carolyn Dykema of Hollistion is stepping down to take a job at the solar company Nexamp. (MetroWest Daily News)

MUNICIPAL MATTERS  

Boston Mayor Michelle Wu announced the city’s proof-of-vaccination rules for restaurants and other venues flanked by leaders of surrounding communities who sounded ready to launch similar policies – but many of those cities and towns have balked at imposing the restrictions. (Boston Globe

HEALTH/HEALTH CARE

Moderna’s COVID vaccine, which had been available under “emergency use authorization,”  receives full FDA approval. (Boston Herald

WASHINGTON/NATIONAL/INTERNATIONAL

Former President Donald Trump was more deeply involved than previously known in discussions of ways to potentially take control of voting machines in key swing states following his 2020 reelection loss. (New York Times)

ELECTIONS

US Rep. Ayanna Pressley launches her 2022 re-election campaign. (MassLive)

BUSINESS/ECONOMY

In 2021, the inventory of homes on the market remained low while housing prices remained high, making it tough for prospective homebuyers. (Telegram & Gazette)

Despite a biotech boom, it’s a much quieter Kendall Square amid the pandemic. (Boston Globe

ENERGY/ENVIRONMENT

Despite threats from some fishermen, a group of lobstermen are seeking permission to experiment with ropeless fishing to avoid harm to right whales. (Boston Globe)

CRIMINAL JUSTICE/COURTS

Documents filed in a federal lawsuit against former Springfield District Court judge Thomas Estes provide dueling accounts of the sexual relationship he engaged in with a social worker at the court where he presided. (MassLive)

After the parents of Ahmaud Arberty object, a federal judge rejects a plea deal that would have avoided a hate crimes trial for one of men convicted of killing their son. (NPR)

MEDIA

A judge ruled that the city of Worcester acted in bad faith when it illegally withheld police records from the Telegram & Gazette in 2018, then made misrepresentations in court. The judge fined Worcester $5,000 in punitive damages and 20 times that amount in legal fees. (Telegram & Gazette)

The New York Times buys Wordle and intends to keep it free for now. (Nieman Journalism Lab)

PASSINGS

Avram Goldberg, who served as president and chairman of Stop & Shop and is the father of state treasurer Deb Goldberg, dies at 92. (Boston Globe

Garry Brown, a sportswriting legend who covered sports for the Springfield Republican for 71 years, dies at 90. (Springfield Republican)

State Police Trooper Robert Whittier, the force’s longest serving active duty member who joined a motorcycle unit in 1992, dies. (MassLive)