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Masquerades and tightrope walking

I wrote my column last week prior to last Friday’s expansion of the mandatory indoor mask executive order by Gov. Jim Justice. But it seems since that order came out and since the governor’s comments saying business owners can call the police on customers who refuse to comply, confusion has abounded.

So, let’s get a few things straight for those of you who imagine yourselves as reincarnated members of the Sons of Liberty, the Sam Adams-led group of Boston rebels who started the Boston Tea party among other things (I’m more of a John Adams fanboy myself).

First, can you be arrested for refusing to comply with the governor’s mask order? Yes and no. When I say no, I mean that the mere act of not obeying an executive order is not in and of itself a crime. It’s more like an administrative rule if anything, and there are penalties sometimes for not complying with administrative rules, though they’re usually not criminal in nature.

Administrative rules are all around you and you never realize it. In fact, members of the West Virginia Legislature’s Rule-Making Review Committee met just last week to approve rules created by various state agencies for a multitude of topics and issues. While the Legislature makes laws, they often leave the specifics of how those laws work to state agencies. Those agencies then develop the specific “rules,” and the Legislature recommends those rules for approval.

Agencies also have the power to implement emergency rules, rules meant to be temporary. When the Secretary of State’s Office determined the COVID-19 pandemic could be used as a valid medical excuse to request an absentee ballot, that was done through an emergency rule.

In the case of the governor’s powers during a state of emergency, he is empowered with broad authority, including issuing executive orders under State Code 15-15-6(c)(11): “To perform and exercise other functions, powers and duties that are necessary to promote and secure the safety and protection of the civilian population.”

One of those executive orders, issued in July and amended last week, requires face masks or face coverings be worn at all times in public indoor places. Exemptions include children under age 9, people actively eating or drinking and people with breathing issues or require assistance. The only difference between July and last week is now people have to wear masks even if they are able to stay socially distant from others.

Much of the hullabaloo about last week’s amended order came after Justice said those who don’t comply with the order can be arrested for obstruction. People treated this threat as something new and a vocal minority went nuts, but I’m going to let you in on a little secret: you could have been arrested for obstruction even before.

As I said above, there is no crime for not wearing a mask during an emergency or pandemic. In fact, there is a law on the books that actually makes wearing a mask a crime in certain circumstances (though before you get excited, the law doesn’t apply to “Wearing a mask, hood or device prescribed for civil defense drills, exercises or emergencies.”)

So, how would one be charged with obstruction of justice, a misdemeanor? Businesses already have a wide degree of latitude for how they operate their stores. If you show up in their store or place of business without a mask, especially if they have a sign telling you a mask is required to be in their business, they can ask you to leave until you put on a mask. Heck, they’ll probably sell you one.

If you refuse to put on a mask after being asked to and you refuse to leave, the business has the option to call law enforcement, just like if you showed up with no shoes or shirt and refused to leave. Law enforcement will probably also ask you to comply or leave. If you still refuse to mask up and you refuse to leave, the business can have law enforcement remove you from the business (if you return, you’re committing criminal trespass). If you still refuse to leave despite law enforcement orders to do so, then you’re likely to be charged with obstruction.

There’s a lot of hoops for one to jump through before they end up at either criminal obstruction or criminal trespass. Let’s be honest, most people who are adamant about not wearing a mask will just turn around and leave. Even worse, most people who refuse to wear a mask in a store when asked to will just be ignored, because what poor bloke making just above minimum wage wants the hassle?

But outside of an addition to the executive order, nothing has changed since it was first issued in July. It certainly doesn’t warrant giving out the governor’s personal cell phone number for the purpose of harassment, which was done by a former lawmaker and defeated state Senate and gubernatorial candidate. It doesn’t warrant rumor mongering and conspiracy theorizing that the state is about to confiscate guns or tattoo our hands with the mark of the beast.

There’s a world of difference between the issues that led to the American Revolution and being asked to don a cloth rectangle over your mouth and nose for the 30-or-so minutes you’re in a store.

¯¯¯¯¯¯

To end on a note of levity, a ham-handed effort by Attorney General Patrick Morrisey to show support for the governor while also trying to appease the anti-mask freedom fighters blew up in a misunderstanding and a public admonishment from the governor.

Morrisey took to his Facebook page Wednesday to agree with Justice that the state can’t make wearing a mask a crime and even encourage mask wearing, social distancing and handwashing. Yet, he also felt the need to send the signal that no one should go to jail in relation to Justice’s executive orders.

“I will continue to ensure that any efforts to use the criminal code for any purpose are not applied in an arbitrary, improper or heavy handed manner,” Morrisey wrote.

On one hand, he’s supportive of the governor. On the other, he’ll step in to deal with overreach of the criminal code. Of course, the Attorney General’s Office has no say in what charges law enforcement can bring or what crimes a county prosecutor can pursue. In fact, if a criminal case would be appealed to the state Supreme Court, Morrisey’s office would have to defend the state’s position.

Justice did not appear to be happy with Morrisey’s post and issued a statement Wednesday night.

“I was saddened this evening to see the statement that Attorney General Morrisey posted to his Facebook,” Justice said. “With the overwhelming majority of West Virginians in favor of wearing masks, it is extremely disheartening that he doesn’t also strongly support the wearing of masks, especially after all our medical experts on a state and federal level have made it abundantly clear that wearing a mask works to stop this virus.”

Morrisey was quick to say on Twitter that he didn’t mean to look like he was disagreeing with the governor. But Morrisey’s statement was a tightrope walk and it appears he lost his balance.

(Adams is the state government reporter for Ogden Newspapers. He can be contacted at sadams@newsandsentinel.com)

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