July 12, 2020 (PDF)

At A Glance: Preemption and the Pandemic July 12, 2020 In This Edition: State/Local Conflicts Over Masking Orders Trending Now: ● A List of Preemption Suits Against Local Tenant Protections ● State/Local Fights Over Federal COVID-19 Funds, ● Friction Over School Openings Mandatory Masking Orders Spark More Conflict This weekend, Louisiana became the 25th state to issue some form of a mask mandate as governors are facing increasing pressure to pass statewide mask requirements and mount a more coherent pandemic response as coronavirus cases soar to record levels. Local officials and health experts have warned that infections could continue to spiral out of control unless governors issue public health measures that apply to everyone. The resurgence of the virus, particularly in the Sun Belt, has left some mayors of hotspot cities frustrated with their governors over their lack of control to require residents to wear masks or stay at home. “The rising tide of coronavirus cases in the U.S. South and West, coming four months into the outbreak, emerged amid a patchwork of often confusing or conflicting rules across government that have proved inconsistent and often difficult to enforce, making the pandemic harder to halt,” the Wall Street Journal reports. Alabama A bipartisan group of 10 mayors from Alabama’s largest cities have argued in favor of a statewide mask order, telling Gov. Kay Ivey (R) that it was necessary as cases have climbed steadily in the state. Ivey has previously dismissed the idea. Her coronavirus orders say only that the state’s two largest counties, Jefferson and Mobile, can be more stringent than the state. But State Health Officer Scott Harris said he has been encouraging local mask orders. 1 Montgomery Mayor Steven Reed (D) said his office interpreted the governor’s order as allowing for local orders that are stricter but not looser. He implemented a mask requirement by executive order in mid-June; the city council adopted it as law this week. Arizona Governor Ducey has decided to re-close bars, gyms and movie theaters, but his order only closes these high-risk establishments through July 27. It will likely be necessary to extend this shutdown, and it may prove necessary to re-close other parts of the economy. When Governor Ducey first issued his stay-at-home order, in late March, he simultaneously preempted cities and counties in Arizona from acting on their own. The governor partially reversed course in mid-June, declaring that local officials would be allowed to require masks—but not restrict businesses—in their communities, removing a barrier to local control. “ This week, Kristin Urquiza wrote in a scathing obituary in the Arizona Republic that her father, Mark Urquiza, should still be alive: “His death is due to the carelessness of the politicians who continue to jeopardize the health of brown bodies through a clear lack of leadership, refusal to acknowledge the severity of this crisis, and inability and unwillingness to give clear and decisive direction on how to minimize risk.” Florida Despite the fast his state set a single day record for COVID-19 cases this weekend and a physicians’ protest outside the Governor’s Mansion, Gov. Ron DeSantis has refused to implement a state-wide mask mandate. In lieu of state leadership, Multiple local governments have issued their own mask orders – and have been challenged in court for issuing those orders. State Rep. Anthony Sabatini is spearheading legal challenges against seven local masking orders. A virtual hearing was held Friday for the lawsuit Sabatini filed against the Leon County ordinance. The judge upheld the order. Other lawsuits against local masking orders include: ● Palm Beach County Mask Mandate Lawsuit ● City of St. August County Mask Mandate Lawsuit ● Jacksonville Mask Mandate Lawsuit Georgia Gov. Brian Kemp slammed the Atlanta mayor's decision to move the city's reopening back to phase 1, saying the action was "merely guidance -- both non-binding and legally unenforceable." Phase 1 includes an order for residents to stay home except for essential trips. The mayor, Keisha Lance Bottoms, who has tested positive for Covid-19, defended her decision saying the state opened recklessly and residents were "suffering the consequences." "As clearly stated in my executive orders, no local action can be more or less restrictive, and that rule applies statewide," Kemp wrote on Twitter. Earlier this week, Kemp’s office said mask requirements adopted by Mayor Bottoms and the leaders of Savannah, Athens and other cities are “unenforceable,” but stopped short of 2 “Like all of the local mask mandates, Mayor Bottoms' order is unenforceable,” said Kemp spokeswoman Candice Broce. “We continue to encourage Georgians to do the right thing and wear a mask voluntarily.” Kemp has encouraged the use of masks, but not required them, and signed a measure that prevented local municipalities from creating stronger provisions than those that are in his emergency order. Iowa The mayor of Muscatine has implemented a mask mandate in an effort to limit coronavirus exposure, at a time when other communities in eastern Iowa are seeing a spike in cases. But questions persist about the legal authority of local officials in Iowa to issue such orders. Mayor Diana Broderson defended the order at a tense press conference on the steps of City Hall Sunday afternoon. A group of people gathered in opposition and repeatedly interrupted her and local health care experts, shouting down the speakers multiple times. Iowa Gov. Kim Reynolds this week said the mask order in Muscatine, the first in the state, was invalid. But she said she would consider allowing some Iowa counties where cases are spiking to mandate masks. Throughout the coronavirus crisis, local officials in Iowa have been frustrated that their abilities to take emergency action to respond to the pandemic have been preempted by the state government. Kentucky Kentucky’s Democratic governor Andy Beshear this week instituted a new requirement that people wear face coverings in many public settings, a move that has put him at odds with the state’s Republican attorney general and a judge who has issued a restraining order against future coronavirus-related executive orders. A county circuit judge this week sided with plaintiffs who sued over Gov. Andy Beshear’s capacity limit on agriculture tourism businesses, the Louisville Courier-Journal reported — delivering a victory for Kentucky Attorney General Daniel Cameron, who has challenged Beshear’s measures to stem the spread of the coronavirus. The judge also took aim at future orders from the governor, saying Beshear must “specifically state the emergency that requires the order, the location of the emergency, and the name of the local emergency management agency that has determined that the emergency is beyond its capabilities,” according to the Courier-Journal. Beshear slammed the judge who “thinks he’s an epidemiologist.” He called the judge’s actions “absolutely irresponsible” and “absolutely wrong under the law.” Louisiana Louisiana Gov. John Bel Edwards has issued an executive order requiring all people ages 8 and older to wear face coverings in public to curb the spread of the coronavirus, according to the Baton Rouge Advocate. The state’s Republican lawmakers, who have opposed coronavirus restrictions, are likely to speak out against the measure. Louisiana Attorney General Jeff Landry (R) recently spoke out 3 about potential mask requirements in schools, writing in a letter to education officials that such coverings should be encouraged but not required when classes resume. “We believe that mandating students to wear masks creates a situation that may cross the line on liberty, and may also become a tremendous distraction with enforcement,” Landry wrote. Michigan Michigan Gov. Gretchen Whitmer (D) has issued an executive order telling businesses in the state that they must refuse service to customers who aren’t wearing masks. Businesses that fail to comply could face a temporary suspension of their license, while individuals face misdemeanor charges, but not jail time. The new order takes effect on July 13. Mississippi Mississippi Gov. Tate Reeves imposed a mask requirement after the stated recorded more than 5,600 cases in the first eight days of July. His order applies to 13 of the state’s 82 counties, including some of Mississippi’s largest cities. “We’ve been begging for a uniform response from the state,” said Mayor Chokwe Antar Lumumba (D) of Jackson, Miss., where hospital intensive care unit beds were nearing full capacity. Lumumba, argued the order was toothless unless it covered all state residents. North Carolina North Carolina required mask-wearing statewide on June 26, but a dozen sheriffs said they wouldn’t make people abide by it. “We’re not going to harass people,” said Sheriff Sam Page of Rockingham County, a Republican. “When people feel that they’re being told what they can and can’t do here in America, that goes against the grain of what America stands for.” A spokeswoman for Gov. Roy Cooper said that the governor’s order is meant to slow the spread of the virus and: “It is the responsibility of law enforcement to enforce this and other orders.” Ohio Ohio Gov. Mike DeWine (R) tried to mandate masks in the spring but backed down after a torrent of criticism. He has since instituted a county-by-county approach, only requiring masks in places where health officials say the virus spread is “very high.” It remains unclear how that order will be enforced. Some local officials have said it is not their responsibility. In a rare front-page editorial Saturday, the Columbus Dispatch said the move was “akin to closing the barn door after the horses have escaped.” South Carolina South Carolina Gov.

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