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Down but not out: NY appeal revives indoor mask mandate, for now

The Empire State’s masking rules will stay in place while a state court decides if the health department was authorized to issue its mandate.

ALBANY, N.Y. (CN) — A New York appeals threw ice Tuesday on the ruling by a state judge roughly 24 hours earlier that found the state lacks authority to enforce a mask mandate. 

“Disrupting the status quo like that will cause immediate and irreparable harm,” Assistant Attorney General Judith Vale had said during the virtual hearing this afternoon, hours before the Appellate Division granted the state a stay.

In his decision voiding the mandate late Monday, Justice Thomas Rademaker with the Nassau County Supreme Court said no law passed by the state legislature gives the Department of Health authority to enact laws itself.

“Suffice it to state that there are too many examples of instances to mention wherein tolerating laws cloaked as agency rules … would result in the demise of that co-equal branch of government,” Rademaker wrote. 

“This Court does not need to contort the bounds of reality to imagine chaos in this State wherein laws were rules made from Executive branch appointees,” he continued, finding an example in the Department of Motor Vehicles annually issuing new speed limits or other rules of the road. 

The ruling applies to the statewide mandate only; it does not affect local masking rules. State attorneys wasted little time filing a notice of appeal, leading to Tuesday’s hearing where Justice Robert J. Miller probed the extent of the state’s authority, asking whether the health department could, for instance, require hand-washing of the general public as it does for employees

Vale said such a measure may be allowed if a pathogen spread by not washing one’s hands became a concern. In the case of the coronavirus, spread “specifically through the air,” face masks target the risk. 

“These regulations appropriately react to public health crises: novel diseases that might abruptly come, as Covid-19 did,” Vale argued. 

An unredacted version of the original filing in Nassau is not publicly available, but it appears to have been filed by a class of parents and natural guardians on behalf of their children. As Rademaker made note of, the mandate includes, “in part, schools and school children.” The petition takes aim at Governor Kathy Hochul — who announced the mandate last August on her first day in office — in addition to the state’s health department and commissioner of health. 

Chad LaVeglia, representing the petitioners, say the state is wrong to treat masking as status quo. 

“The status quo is not children with masks,” LaVeglia said at Tuesday’s hearing. “If this court accepts that the status quo is as the state says it is, then we’ll be masked forever. That will become the status quo.” 

While the health department can add measures for things like contact tracing, masks are over the line, he argued. 

“What they cannot add was this broad, sweeping power, and they have no check or balance whatsoever,” LaVeglia said. “They can be issued at any time and there’s no limitation to them.” 

In its request to stay Rademaker’s decision pending its appeal, state attorneys argued that the health department’s authority to impose health regulations long predates the pandemic.

Vale acknowledged there doesn’t seem to be a procedure by which students are exempted, but pointed to the science. 

“The prevailing scientific consensus is that wearing masks does not affect individuals’ health, whether it’s adults or children,” she said. 

Masking up doesn’t significantly interfere with education, she continued, saying any perceived harm would be “vastly outweighed” by public health concerns if the mandate is invalidated — and that the deadly virus also causes disruption to learning and students’ comfort. 

Governor Hochul praised the stay entered just before 5 p.m. Tuesday. “These measures are critical tools to prevent the spread of COVID-19, make schools and businesses safe, and save lives,” she said in a statement.

LaVeglia meanwhile emphasized that the stay is temporary, and “standard in these situations.”

“The scores of children who, for the first time in two years were able to experience freedom today will be devastated,” he wrote in an email to Courthouse News.

Rademaker had gotten it right on Monday, the attorney insisted. “In our system of government administrative agencies do not make laws,” LaVeglia wrote. “The Governor and Commissioner Bassett cannot circumvent the legislative process despite good intentions. Otherwise, we all lose the right to have our voices heard through our elected representatives.”

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