(The Center Square) – A 2-1 ruling by the Tacoma-based Washington State Court of Appeals Division II upheld the state’s prior mask mandate and authority to do so. The ruling also contained a dissent that seemingly encouraged more legislative oversight of emergency powers.
The ruling involved a lawsuit originally filed in July 2020 by the Freedom Foundation on behalf of group of citizens that questioned whether Gov. Jay Inslee and then-Secretary of Health John Wiesman have the constitutional authority to mandate people wear masks in public and on private property as part of the effort against the COVID-19 pandemic.
After the state successfully moved for a change of venue in the case, a Thurston County Superior Court judge in March 2021 essentially dismissed the legal challenge to the mask mandate by way of summary judgement.
Plaintiffs appealed the decision.
“In sum, the mask mandate does not implicate speech, therefore, we do not address whether the mask mandate survives strict scrutiny or compels speech,” Court of Appeals Judges Anne Cruser and Lisa Worswick wrote in the majority decision, released Tuesday. “And, the mask mandate is not void because the legislature properly delegated the authority to address an emergency to the secretary, the governor’s Emergency Proclamation was not in excess of his authority, and the power delegated to the local health officer is not improper. We affirm.”
Judge Bernard Veljacic saw things differently in his dissent.
“Even so, I am not convinced that the legislature, in making the grant of authority, anticipated such a broad and lengthy imposition of emergency health measures when it first enacted chapter 43.06 RCW,” he wrote. “It is true that our Supreme Court has recognized that the broad grant of authority ‘evidence[s] a clear intent by the legislature to delegate requisite police power to the governor in times of emergency.’ But this begs the question: ‘for how long’?”
He went on to note, “Certainly, while initial executive response to emergencies should be robust and unhindered by the burden of administrative or legislative oversight, this should not be the case over a longer period of time. Of course, in the early days of an emergency, Washingtonians would suffer if required to wait on the executive to set a legislative session, assemble the necessary quorum, and oversee a vote on a course of action. But at some point, over the long term, an emergency grows less emergent. After all, time allows for the opportunity to reflect. That same opportunity should include legislative review.
“In all instances, we must be careful with such broad grants of authority. We would do well to employ a healthy skepticism of such authority upon objective consideration of who might possibly wield it at some point, or what they might deem an emergency.”
Majority Democrats failed to pass any kind of meaningful reform of Washington’s emergency powers during this year’s legislative session.
The Center Square reached out to the Governor’s Office for comment on the dissent.
“Out of respect for the separate branches, I’ll decline this invitation to critique a judge’s dissenting opinion,” Inslee spokesman Mike Faulk said in an email response. “We agree with the ruling.”
The Center Square also asked if the governor had any second thoughts about the fact that as of Wednesday, Washington is on day 893 of an active COVID-19 state of emergency declaration by Inslee.
“As for your questions about how long the order has been in place, this debate is more rhetorical than it is based on anything that has happened or could theoretically ever happen under the statute we have,” Faulk said. “The governor has used his authority prudently to save lives and his exercise of that authority has been upheld in court every time it was challenged.”
He concluded, “Most Washingtonians are not as concerned about whether the governor has an emergency order in place as they are over whether it is appropriate, helpful and effective at keeping their communities safe. It does those things without violating anyone’s rights or the separation of powers, as the results in our communities and in our courts continue to confirm.”
According to the state Department of Health’s COVID-19 Data Dashboard, as of Wednesday there are 174 cases of the virus per 100,000 people, with 12% of hospital beds occupied by COVID-19 patients.