DRAKE: Mask Law on Hold in St. Joe County. More Legislative Steps Still Required

For the first time since early May, St. Joseph County is free of mandatory mask requirements. As it says in Section 1 of Ordinance 85-20 — aka the expired mask ordinance — “The ordinance shall be in effect until the County Council public hearing in April, 2021, at which time the Council will make a determination to renew it, change it, or rescind it.”  I’ve got news for you, the April public hearing is now over, and there is no new law on the books.

Indeed, the county council did vote 7-2 on Tuesday to renew an extension until May 27th, but that’s not the end of the legislative process. The bill still has to go to the county commissioners. And, they have up to 10 days to act on it. The commissioners have already expressed their desire to veto the legislation, which means the bill will then have to return to the county council for an override. With that in mind, we have about two weeks of freedom. And if the county council has a sudden change of heart and doesn’t follow through on a veto override — though not expected — we could be free of the mask ordinance forever.

Remember, without a law, Health Officer Robert Einterz cannot force anyone to mask. He can only recommend. He knows this from experience. He was on the losing end of a court settlement for his May 2020 order requiring masks. In court documents, he admitted that his order on its own did not have the power of law; was instruction only; and could not require citizens to obey. For his order to be binding, he needed local legislators to pass a law — which didn’t happen until November. Unfortunately, until that suit happened, St. Joe County citizens didn’t know better and followed his orders as if they were a mandate. Even businesses received violations based on his illegal order. It’s too bad that it took an expensive lawsuit to prove Einterz wrong. Especially because when he was pressed on the issue by the South Bend Tribune after he was initially sued, he seemed to admit that he knew his order wasn’t binding: “This is largely a matter of semantics, and without the ability to enforce the order, the order is, for all intents and purposes, an instruction,” Einterz said. “When I have enforcement to back up the order or instruction, then it indeed becomes a mandate.” Einterz went ahead and fought the lawsuit anyway, spending county taxpayer money along the way.

So, now, businesses have a little window to breathe. After all, businesses were the only entities that could be punished under the previous St. Joseph County mask ordinance. While businesses could be fined if their employees didn’t wear masks, citizens could not receive penalties under the ordinance. Additionally, businesses could not be fined for customers who didn’t wear masks in their establishments. Not surprisingly, no local business was ever fined for violating the mask ordinance. Most of them were requiring their employees to wear masks anyway. This was why many argued that we never needed a mask law in the first place. Of their own volition, companies responded to the marketplace and put Covid safety precautions in place. They apparently saw a customer demand and responded to it. That’s how a free market works. We don’t need big government to keep us safe. While I’d love to see some businesses relax the rules during this momentary period of freedom to accommodate those of us who never believed in masks in the first place, I’m sure most of them won’t. But, it is certainly time we give businesses the choice.

We may have a little mask respite, but life in St. Joe County won’t be too much different. Most won’t even realize that we are no longer under a mandate, and the media won’t tell them — either because they purposely don’t want to spread the “dangerous” news or they’re not doing their legislative homework. And, even if people did know, do you really think that the majority of citizens and businesses in this county are going to drop the facial security blankets they’ve trusted for months? Regardless of whether the county council eventually overrides the commissioners’ veto, and we re-continue the ordinance through May 27 — the reality is that masks are going to stick around way into 2021. We don’t need a law to keep people in masks. We never did.

Amy Drake is a former journalist and speechwriter raising a family in Granger, Indiana.