Utah lawmakers acted swiftly on Tuesday, the first day of the Utah Legislature’s 2022 general session, to exert their power and take the first of two steps needed to overturn two locally supported mask mandates amid the state’s omicron surge.
The Utah Senate voted 22-5 to approve a resolution that would terminate not only Salt Lake County’s mask mandate, but also the mandate recently issued by Summit County. The vote was held under suspension of rules that typically require a public hearing.
The resolution, SJR3, now goes to the House for consideration, where the GOP supermajority could give it final approval as soon as Wednesday. Because it’s a joint resolution, it would not need the governor’s signature to become law, and the governor would not have the power to veto it.
The Utah Legislature’s ability to overturn the local health orders stem from SB195, a law approved by the Utah Legislature last year that restricts executive and local powers to issue public health orders amid the COVID-19 pandemic.
Even though Salt Lake County’s was a 30-day temporary order that was upheld by the Republican-controlled Salt Lake County Council, lawmakers are moving to override it while arguing mandates are more divisive than helpful.
Senate Democrats pushed back, arguing lawmakers aren’t allowing “local control” in communities that have already decided a mask mandate was necessary.
“If we are going to set a precedent of overturning local government decisions, that is not a process I would like to be a part of,” Sen. Kathleen Riebe, D-Cottonwood Heights, said before casting her vote against the resolution.
In a media availability earlier Tuesday, Senate President Stuart Adams, R-Layton, pushed back on the notion that the resolution could be seen as the Legislature overreaching on local control, saying “it’s the process of government.”
“That process ... is part of the statute. If we don’t act, then we’re complicit either in accepting or rejecting (it),” Adams said. “If statutorily we have the power to act on it and we don’t, then we’re complicit in letting it stand. This isn’t a local issue ... it was the process we set up long ago.”
Sen. Dan McCay, R-Riverton, who is sponsoring the resolution, said he doesn’t think mask mandates are effective — especially considering the increased transmissibility of the omicron variant.
It’s like “waving your arms out the window of a car trying to slow it down,” he said.
Senate Majority Leader Evan Vickers, R-Cedar City, said his problem with mask mandates is that they’re put in place by health departments who aren’t directly accountable to voters.
“The bottom line is, we want people that are subject to the public to be able to be making those decisions,” he said. He added that elected county council members — like those who upheld Salt Lake County’s mandate last week — are only one part of the decision-making process.
“The fact of the matter is, there needs to be layers,” Vickers continued. “And so as you go up the channel, there’s layers. ... You got the mayor, you got the county council, you got the Legislature.”
Senate Minority Whip Luz Escamilla, D-Salt Lake City, said her caucus opposes the resolution, having heard from business owners and constituents in support of the mandate.
“My constituency was begging for a mask mandate, even before the mayor acted,” she said. “Not having (a mask mandate) was for many irresponsible and a lack of leadership.”
Senate Minority Leader Karen Mayne, D-West Valley City, was absent from the floor after injuring herself in a fall last week, but her Democratic colleagues used her as an example of the dangers of hospitals being full with COVID-19 patients.
“Sen. Karen Mayne, our minority leader, she had a fall last week and had to go to the hospital,” said Sen. Derek Kitchen, D-Salt Lake City. “Guess who couldn’t find a hospital bed? Sen. Mayne couldn’t find a hospital bed. Isn’t it incumbent upon all of us to do the bare minimum to keep each other healthy? I can’t believe we’re spending time on this today.”
Escamilla pointed out that masks aren’t a silver bullet for the pandemic, but urged lawmakers to reconsider their support of the bill.
“It’s our opportunity to send a message that we care about everyone. This (resolution) is the opposite,” she said.
“Look at the data,” Adams said, when questioned on why the Legislature isn’t doing more to fight the pandemic. “We have some of the lowest case fatality rates. We have the best economy. ... We are not sitting back. We are not doing nothing. We’re doing everything we can.”
Salt Lake County Mayor Jenny Wilson and Dr. Angela Dunn, head of the Salt Lake County Health Department, held a press conference immediately following the vote, in which they both expressed disappointment in the decision.
“I don’t think I’ve ever seen government move this fast,” Dunn said. “Unfortunately, it’s in a direction that’s harmful to our residents in Salt Lake County.”
Wilson said the county followed all guidelines as stipulated in SB195 and said she was frustrated the Senate “decided to move the goal posts.”
Both pleaded that residents continue to wear high-quality N95 or KN95 masks, and get vaccinated or boosted as soon as possible.
Even if the order is overturned by the House, Dunn said it has had a positive impact on residents by alerting them to the seriousness of the pandemic and spurring many to upgrade their masks.
“People are able to protect themselves and their loved ones because of this mask order,” she said, but she worries the Senate’s actions could hamper the ability of local governments to respond to future emergencies — beyond just COVID-19.
“We keep getting punched in the gut every time we try to protect our citizens,” Dunn said.
Other Utah bills targeting local COVID-19 restrictions
Other lawmakers are also lining up legislation to clamp down on local COVID-19 restrictions and further limit the power of mayors to use their executive power to respond to the COVID-19 pandemic.
After a back-and-forth between Gov. Spencer Cox and Salt Lake County Mayor Jenny Wilson about mask requirements at the state Capitol, some Utah lawmakers are wasting no time in pushing legislation that would exempt state facilities from local health orders.
Dr. Angela Dunn, head of the Salt Lake County Health Department, issued a 30-day public health order on Jan. 7 that made “well-fitting” masks mandatory indoors. Cox later directed that the order not apply to state facilities — allowing the Utah Legislature to convene this week with no mask requirement in place.
“While I appreciate the governor’s authority on many levels, he does not have the authority to exempt state buildings and employees from the Salt Lake County mask requirement and is defying a public health order of constraint,” Wilson said, in response to the governor’s order.
Rep. Ryan Wilcox, R-Ogden, and Senate Majority Assistant Whip Kirk Cullimore, R-Sandy, are sponsoring HB182, which excludes state facilities from the jurisdiction of local health departments and restricts chief executive officers of municipalities from exercising emergency powers or declaring a state of emergency during a pandemic.
The bill also takes aim at Salt Lake City Mayor Erin Mendenhall, who has used emergency powers to issue citywide mandates of her own. She wrote to Dunn requesting the public health order earlier this month, saying, “It is our shared responsibility as leaders to protect every life we can.”
Mendenhall issued a mask mandate for schools in Salt Lake City last August, which she said was legal because although state law approved by the Utah Legislature last year limited authority for health officials and the governor when it comes to mask mandates, the law does not apply to city mayors in the same way.
HB182 seeks to close that loophole and would effectively tie Mendenhall’s hands when it comes to future mask mandates.
We are not surprised by H.B. 182 but urge the Legislature to promote good policy over politics when it comes to our residents’ health. This includes empowering local health departments to enact protective measures based on science and their expertise.https://t.co/CFMJYtDXt0— Mayor Erin Mendenhall (@slcmayor) January 18, 2022
In a tweet posted on Tuesday morning, Mendenhall said she was not surprised by what she calls a piece of “reactive legislation,” and blames a “toxic political climate” for the pushback.
“Rather than stripping local authority, we request the Legislature acknowledge that municipal mayors have direct expertise related to any kind of emergency in their local communities, and those mayors’ authority should not be usurped for political retribution,” her tweet read.
Adams said the bill wasn’t designed as retribution against Mendenhall, but said he thinks it’s “questionable that cities have the expertise ... to rule on pandemics” because they lack their own health departments.