How the Legislature wants to overturn mask mandates in Utah

A resolution passed Tuesday by the Utah Senate would terminate orders in Salt Lake and Summit Counties and in Salt Lake City.

(Trent Nelson | The Salt Lake Tribune) People gather as the Salt Lake County Council holds a brief meeting on the mask mandate, in Salt Lake City on Thursday, Jan. 13, 2022.

An attempt to abolish local mask mandates is barreling through the Utah Legislature, with the GOP lawmakers who hold sway decrying the public health measures as government overreach.

On the first day of the 2022 session, the state Senate took a party-line vote to approve a resolution that would terminate orders in Salt Lake and Summit counties and a school-based mandate in Salt Lake City. Also on Tuesday, the state’s health department reported more than 39,000 new coronavirus cases since Friday, the highest weekend tally since the pandemic began.

If the House passes SJR3, lawmakers could end the mask requirement as soon as Wednesday and the governor cannot veto a resolution.

But Sen. Dan McCay, who is sponsoring SJR3, and his fellow Republicans argued the soaring numbers are no justification for government-issued mandates.

“Essentially what we’ve done on a county level is made criminals of people who have elected to not wear a mask,” Sen. Kirk Cullimore, R-Draper, said during Senate debate on the measure. “And that divisiveness is evident when you go to stores, when you go into schools.”

Democrats in the Senate countered that Salt Lake County’s mask order is broadly supported by that community and to them, a resolution that second-guesses local officials is the overreach, not the mandate.

“My constituency was begging for a mask mandate before the mayor acted and the council,” said Sen. Luz Escamilla, D-Salt Lake City. “Not having that was for many irresponsible and a lack of leadership from the county.”

Sen. Derek Kitchen, another Democrat from Salt Lake City, said no one enjoys wearing masks but choose to do it for the greater good.

“If you look around this room, you see all of the staff, a number of spouses and all Democrats wearing a mask. Only one Republican,” he observed. “We’re not doing it to make a statement. We’re doing it to protect ourselves. We’re doing it to protect you.”

McCay, who did not wear a mask Tuesday, questioned the efficacy of face coverings in protecting against the omicron variant currently raging through the state.

“I liken this requirement to wear a mask like trying to wave your arms out the window of a car to try and slow yourself down,” McCay said.

The comments echoed a stance that Gov. Spencer Cox took last week, as he wished an audience “good luck” if they were wearing cloth or surgical face coverings. An Intermountain Healthcare expert later called Cox’s comments “misleading” and said while some masks are more effective than others, all are better than nothing.

But McCay said he has heard from several teachers concerned about the mental health impacts of requiring students to cover their faces, adding that his own daughter burst into tears when she learned she would have to wear a mask in school.

Following about 45 minutes of debate, the Senate passed the resolution by 22-5, sending the measure to the House for consideration.

Salt Lake City Mayor Erin Mendenhall tweeted after the vote that she had “no regrets” about issuing a mask mandate.

“Not for a second do I regret taking action to keep our kids and teachers safe,” she wrote.

Salt Lake County’s 30-day public health order was issued earlier this month by Dr. Angela Dunn, the county health department’s executive director. Her authority to do so comes from the so-called “pandemic endgame” bill, passed by the Legislature last year.

Lawmakers also gave county governments the power to overturn a mask order. Last August, the Salt Lake County Council voted 6-3 to overturn a mask mandate for K-6 students issued by Dunn.

However, this time around Salt Lake County Council could not muster enough support to overturn the mandate during an emergency meeting last week.

But lawmakers gave themselves the power to overturn county-level orders as part of the same “pandemic endgame” legislation.

Senate Majority Leader Evan Vickers — who sponsored last year’s bill giving the Legislature power to overturn local health orders — on Tuesday defended the state’s right to terminate the Salt Lake County mandate, even though it has been upheld by county council members.

“There need to be layers,” the Cedar City Republican said, adding that mayors, councils and state lawmakers should each be responsible for reviewing a health order.

Dunn pleads for masks, with or without a mandate

In a media briefing after Tuesday’s vote, Dunn said she’s nervous state lawmakers are signaling that masks don’t work and that the omicron variant isn’t cause for concern.

“Both those two things are false, and I really just want the Salt Lake County residents to know out there that just because the health order might be overturned, doesn’t mean they shouldn’t still be wearing their KN95 and N95 masks when they’re in public spaces,” she said. “Because we’re still in a surge and we’re still overwhelming our hospitals and our essential services.”

House Minority Leader Brian King, D-Salt Lake City, said the push to overturn the county mask requirement was a cynical and hypocritical move from his Republican colleagues.

“We praise the virtues of local control until we want to control the locals,” King said, and added that it makes little sense to block efforts to slow the spread of COVID-19, especially when the state’s current infection rates are among the highest in the country.

“County officials are acting in good faith. We should let them exercise that authority. Our best public health experts tell us mask mandates in public places will save lives. And being required to wear masks in public imposes no meaningful cost or deprivation of liberty. So why in the world would the legislature shut down the counties or cities?” King said.

Facing Salt Lake voters

The vote could be tricky for some Republicans in Salt Lake County.

McCay, who is up for election in November, is not taking much political risk by leading the charge to overrule. His newly-drawn district is heavily Republican. Partisan data for the new boundaries give a Republican candidate a 24-point advantage over a Democrat.

The other Senate Republicans from Salt Lake County who are facing reelection this year are similarly insulated having been drawn into heavily Republican districts.

But some House Republicans could be facing a no-win situation. Several represent districts that are either swing seats or have a partisan advantage favoring Democrats. A vote to overturn might hurt their prospects in the general election, but a vote to keep the mandate in place opens them up to a challenge from their political right.

Rep. Jim Dunnigan, R-Taylorsville, is one of the most vulnerable Republicans this year. His new district is projected to have a 10-point partisan lean for Democrats.

The swing-seat Republicans are Reps. Jordan Teuscher, R-South Jordan, Cheryl Acton, R-West Jordan, and Rep. Judy Weeks Rohner, R-West Valley City.

Even without those four, House Republicans would have enough to easily approve the resolution, as 38 votes are needed to pass. Republicans control 58 seats.

House Republicans were tight-lipped about the resolution, not offering any public comment. It is expected if the resolution makes it to the House, it will pass.

Another attempt to curb local leaders

The resolution wasn’t the only measure brought forward to curtail the power of local officials in responding to the pandemic, with another proposal relating to Mendenhall’s emergency mask requirement for Salt Lake City.

At the time, Mendenhall claimed she had the legal authority to take such a move despite Utah lawmakers delegating that authority to county health departments, not municipal leaders. The requirement to wear a mask inside city facilities remains in effect.

Lawmakers could have overturned Mendenhall’s order anytime during the past four months. Instead, they decided to leave Salt Lake City alone.

That is until now.

HB182 specifically prohibits a chief executive officer of a municipality from exercising emergency powers during a pandemic, epidemic or public health emergency. The House bill would leave local governments at the mercy of county authorities.

The proposal from Rep. Ryan Wilcox, R-Ogden, exempts all state facilities, including the Capitol Hill complex, from the authority of local health departments. The bill specifically blocks local health departments from enforcing any state law on state property at any time, leaving that authority to the Utah Department of Health.

If the bill passes with two-thirds support in both the House and Senate, it goes into effect upon the governor’s signature and would terminate Salt Lake City’s mask order immediately.

Kim Bojórquez contributed reporting to this article.