After Ruling, Is Mask Mandate In Effect? Depends Who You Ask.

NASSAU COUNTY, NY — Yesterday, a Nassau County Supreme Court judge ruled that the state's school mask mandate was unconstitutional. Some school districts leapt at the chance to make masks option in their buildings. Others said that the state appealed the ruling, and that the mandate was still in place.

So what's actually going on? It turns out the issue is, of course, complicated.

According to Hofstra University Law Professor James Sample, Judge Thomas Rademaker ruled that the state Department of Health did not have the authority to issue the mandate. It was up to the state Legislature to issue the mandate, or to authorize the governor to do so, Rademaker ruled. Therefore, the mask mandate couldn't be enforced.

The state is appealing the decision, though. The argument that Gov. Kathy Hochul and her administration make is that the surge in coronavirus cases caused by the omicron variant was a new emergency. And since the Legislature was not in session at the time, the Department of Health had the authority to deal with emergency health situations and enact the mandate.

Because the state appealed the Supreme Court's ruling, which side is right will be up to an Appellate Court judge to decide.

But until then, is the mask mandate in effect? Well, it depends on who you ask.

If the state is granted a stay of the judge's ruling while it appeals, then the mask mandate is still in effect. According to Sample, there are provisions in New York State law that say, under certain circumstances, the state is automatically granted a stay when it appeals a ruling. But it's unclear if that is the case now.

If it is, then the mask mandate is still in effect. But if not, the state needs to apply for a stay of the ruling in order to keep the mandate in effect.

Another issue at play in the ruling is timing. The state's mask mandate was set to expire on Feb. 1, Sample said.

"Given that there's really only one week left in the mandate as it is, I suspect that if the state seeks and receives a stay of the judge's order, then they will effectively be able to maintain the mandate for another week and run out the clock," said Sample.

Also to be considered are the politics of the issue, Sample said. "[Hochul] is clearly the front-runner in the gubernatorial election," he said. "She probably doesn't want to risk alienating huge swaths of Nassau and Suffolk counties, where this is clearly a divisive issue."

Sample said it is likely the governor's office will announce by the end of the day whether or not it has received a stay on the judge's ruling, and if the mask mandate is still in effect.

"If there's not a clear statement form the governor's office that the ruling has been stayed ... then they're almost, in effect, choosing to allow the confusion and ambiguity to continue," said Sample.

Update: The stay was granted by the state Appellate Division, which means the mask mandate is still in effect for now.

"As governor, my top priority is protecting the people of this state. These measures are critical tools to prevent the spread of COVID-19, make schools and businesses safe, and save lives," Hochul said in a statement. "I commend the attorney general for her defense of the health and safety of New Yorkers, and applaud the Appellate Division, Second Department for siding with common sense and granting an interim stay to keep the state's important masking regulations in place. We will not stop fighting to protect New Yorkers, and we are confident we will continue to prevail."

“It is time for the governor to stand down and stop disrespecting the rights of students and parents," said Nassau County Executive Bruce Blakeman. "Mask decisions should be made by families and school boards who have their finger on the pulse of their communities. Not Albany politicians. Nassau is normal again, and our county will continue to lead the way as an example for the rest of the state to follow.”

This article originally appeared on the Massapequa Patch