😷 Seeking Support From E.L. Business Owners

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Next month the East Longmeadow Town Council will meet and vote on a petition to end the local mask mandate. 

I want the Councilors to know that local businesses support the petition.  If you know a local business owner who supports ending the town’s mask mandate, please ask him or her to sign my letter to the Council.

           

I don’t need the original signature. A photocopied image of the signed document will suffice. It can be emailed to me at justin@jrmccarthy.com or faxed to 413-647-0018.

Alternatively, business owners can simply copy and paste the contents of the letter (written out below) and email it to me using the company’s email address.

Town Council: I am an East Longmeadow business owner and I support the petition to end the town’s mask mandate.  Since the mask mandate began, my business has experienced some or all of the following negative effects: (1) I have lost customers and income. (2) I am constantly burdened by the need to enforce mask compliance on my customers and staff. (3) Despite my best efforts to enforce the mask mandate, I constantly worry about being reported to or fined by the health inspector for non-compliance.  For these reasons, I respectfully ask the Town Council to end the mask mandate.

Signing the letter does not obligate the business owner to appear at the meeting or take any other action.  I will submit all letters to the Councilors in a private manner and I will do nothing to publicize the names of the business owners who sign.

Feel free to contact me directly with questions or concerns.

Why the East Longmeadow Town Council Can and Should End the Mask Mandate

On October 4, nearly 160 East Longmeadow voters filed a petition with their Town Council demanding an end to the defunct Health Board’s mask mandate.  The petition is based on the “Citizen Relief Mechanisms” contained in Article 8, Section 8-2 of the East Longmeadow Home Rule Charter.  According to the Charter, the Councilors must call a public meeting and vote on any petition presented to them by at least 100 members of the town’s electorate.  The Councilors can and should end the mandate for several reasons.

The Health Board Likely Violated Open Meeting Laws by Failing to Give Notice of Its Mask Mandate Vote   

According to Massachusetts’ Open Meeting Law (G.L. 30A, § 20(b)), public bodies such as the Health Board must post notice of every meeting at least 48 hours in advance. The notice must include ”a listing of topics that the chair reasonably anticipates will be discussed at the meeting.”

The Attorney General’s Open Meeting Law Guide states that

Although a public body may consider a topic that was not listed in the meeting notice if it was not anticipated, the Attorney General strongly encourages public bodies to postpone discussion and action on topics that are controversial or may be of particular interest to the public if the topic was not listed in the meeting notice.

On August 26 the Health Board voted to impose a local mask mandate on the town. It is very likely that the Board members anticipated discussing the measure prior to the meeting. The measure is unquestionably “of particular interest to the public” and even “controversial.” Nevertheless, the notice posted prior to the meeting contained no mention of the topic.

Notice – Page 1 of 2
Notice – Page 2 of 2

A formal complaint has been filed with the Town and the Attorney General’s Office.

The Board’s actions are a violation of the state’s open meeting laws and should be immediately redressed.  However, the Board is vacant and it is unclear when new members will be appointed.  Therefore, the Council should resolve the matter.

(It should also be noted that the Health Board failed to comply with M.G.L. c. 111, § 31, which is the statute the Board cites as its authority for imposing the mask mandate. That law clearly states that Massachusetts health boards must submit copies of “all rules, regulations and standards which have been adopted” with the Department of Environmental Protection. To date, the department has not received a copy of the order.)

The Town Council Has Legal Authority to End the Mandate

The Council’s authority is extremely board.  Article 1, Section 1-3 of the Town’s Home Rule Charter states that “All legislative powers of the Town shall be exercised by the Town Council.”  There is no definition of “legislative powers” in the Charter, but Black’s Law Dictionary defines the phrase as follows:

Legislative power – The power to make laws and to alter them at discretion; a legislative body’s exclusive authority to make, amend, and repeal laws.

Such authority unquestionably gives the Councilors the power to alter, amend, or repeal the current mask order—especially in the absence of a Health Board.

Article 2, Section 2-5 expands the Councilors’ authority even more by giving them all “general” and “corporate” powers.  This essentially means that the Council can act on behalf of the Town however it chooses so long as it does not violate the law or act in contradiction to other provisions in the Charter.

The Mask Mandate Hurts East Longmeadow’s Small Business Owners

The mask mandate negatively affects local businesses.  Many small business owners have lost clientele and income due to the mandate.  Business owners are tired of imposing masks on their customers and employees.   They also resent the ever-present threat of being fined by the Town’s Health Inspector.  A number of East Longmeadow business owners intend to state their grievances to the Councilors either through written statements or in person at the public hearing.

For more on this topic, please read my post East Longmeadow Mask Mandate and Its Negative Impact on Local Business.

Mask Mandates Don’t Work

The Health Board justified its mask order by stating “we know that masks slow or prevent transmission of all COVID-19 variants so far.”  (See the third paragraph of the order.) The statement is not supported by any sort of data or evidence.

In fact, there is no evidence that mask mandates slow the spread of COVID-19.  Dr. Damian Guerra, a bio-statistician, has written a letter to the Councilors summarizing his nationally publicized study in the International Research Journal of Public Health.  As stated in Dr. Guerra’s letter, his extensive study “found no association between either reported mask use or US state mandatory mask policies and COVID-19 case growth.”

Here are just a few key points from Dr. Guerra’s study:

Randomized control trials have not clearly demonstrated mask efficacy against respiratory viruses, and observational studies conflict on whether mask use predicts lower infection rates.

Case growth was not significantly different between mandate and non-mandate states at low or high transmission rates, and surges were equivocal.

 Mask mandates and use are not associated with slower state-level COVID-19 spread during COVID-19 growth surges.

These finds are completely contrary to the Health Board’s stated justification for imposing masks on East Longmeadow residents.

To read Dr. Guerra’s letter in its entirety, click the link below:

Conclusion

The Council should hold a public meeting on the petition in the coming weeks—hopefully in late October or early November.  If you’d like to participate by speaking at the meeting or even submitting a written statement to the Councilors, please let me know.  If you’d like to assist with the “Unmask East Longmeadow Campaign” feel free to send me an email at justin@jrmccarthy.com.

How East Longmeadow Voters Can Challenge the Mask Mandate

East Longmeadow voters have a “citizens relief mechanism” in the town’s Home Rule Charter. According to Article 8, Section 8-2 of the Charter,

The Town Council…shall hold a public hearing and act with respect to every petition which is addressed to it, which is signed by a minimum of 100 voters and which seeks the passage of a measure. The hearing shall be held by the Town Council or…by a committee or subcommittee thereof and the action by the Town Council…shall be taken no later than 3 months after the petition is filed with the Clerk of the Council…

In accordance with this section of the Charter, I have formed a petition to end the mask mandate imposed on our town by the recently resigned health board.

If you are an East Longmeadow voter who is opposed to the current mask mandate, please print and sign the petition.

Mail the original copy to me at 310 North Main Street, East Longmeadow, MA 01028.

If you prefer to e-sign, please send an email to me at justin@jrmccarthy.com with your name and address and I’ll send the document to you via DocuSign.

Signing the petition does not obligate you to appear at the meeting or take any other action.

Feel free to contact me directly with questions or concerns.

East Longmeadow Mask Mandate and Its Negative Impact on Local Business

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It’s been only a couple weeks since I started my campaign to Unmask East Longmeadow.  During that short time, I’ve spoken to dozens of residents who have offered their support and expressed their frustration with the town’s mask mandate.  After listening to a good number of residents, it’s clear that those most opposed to and harmed by the mask mandate are local business owners. 

Here are just a few examples.

I spoke to an aesthetician and masseuse who both lost over half their clients shortly after the town imposed its mask mandate.  No woman wants to get a facial or have a massage while wearing a mask—especially when she can get the same service in a neighboring town without a mask.  Likewise, I spoke to residents who canceled their East Longmeadow gym memberships and joined new gyms in the area where masks are not required.  Almost no one wants to work out while wearing a mask. 

I personally have changed my habits in response to the local mask mandate.  My family and I used to go out for pizza in town every week.  We now go to neighboring towns where we can have dinner without being lectured or scolded about mask use by the restaurant’s staff.  Similarly, if we need groceries or hardware or nearly anything else, we travel in the opposite direct of East Longmeadow.

While it has been fashionable over the past year and a half to lavish praise on healthcare workers and first responders, probably no group of professionals has been hit harder than small business owners.  After making it through lockdowns and innumerable state-imposed restrictions, the last thing local businesses need is a new round of local mandates.  That is why we all need to contact our town councilors and town manager and let them know that we are fed up with wearing masks.  Please email or call the town and, if possible, attend the next town meeting on Tuesday September 28 and tell the councilors in person that masks should be optional.

Updates: School Mask Lawsuit and Campaign to Unmask East Longmeadow

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Here are the latest updates on our campaign against state and local mask mandates.

Lawsuit Against the Statewide School Mask Mandate

Our legal challenge to the statewide school mask mandate was filed yesterday. Thanks to all the parents with the courage to add their names as plaintiffs. Proceedings should start in the coming weeks.

To read the full text of the complaint click here:

Unmask E.L. Sign Standout

Please join us this Saturday (September 25) from 11 to 12 at the corner of North Main Street and Mapleshade Avenue for an “Unmask East Longmeadow” sign standout. There will be free coffee and donuts. Stay the full hour and just stop by for a few minutes. Any support is appreciated.

Next Town Council Meeting

There will be a town council meeting next Tuesday (September 28) at 6pm. The meeting will be held via zoom. The councilors will must likely discuss the need to replace the town’s health board which recently resigned. It will be an excellent time to address the councilors during the public comment session and let them know that you’re opposed to mask mandates. Please added your name to the list of speakers by contacting the council’s clerk at 413-525-5400, ext. 1001. If you can’t attend the meeting, then at the very least email the councilors and the town manager and let them know that you do not want a health board that will continue the mask mandate.

Unmask East Longmeadow Petition

Please sign and share my petition to Unmask East Longmeadow. I have not been allowed to post the petition on any of the town’s Facebook forums and no media outlets have been willing to cover the story. So I need your help to spread the work. The more signatures we get, the most weight the petition will have when it is presented to the town council.

East Longmeadow Health Board and Inspector Resign

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The East Longmeadow health board resigned. The board is comprised of just two members, a doctor and a nurse. The town manager and town council are searching for replacements. (1) please email or call the town manager and councilors and let them know that you do not want anyone on the board who will continue the mask mandate. (2) If you know a doctor or a nurse who is against the mask mandate, please encourage him or her to apply for board membership.

A screenshot from the board of health’s page showing both the Chair and Vice Chair positions are vacant. Christine Johnston is the board’s secretary.

Mask Mandates, Police Powers, and the U.S. Constitution: Jacobson v. Massachusetts

It’s probably safe to assume that a larger percentage of Americans are fed up with mask mandates.  Where, you may ask, do state and local officials get the authority to force me to wear a mask?

Over the past year and a half, state governments have greatly relied on a 116-year-old Supreme Court decision to justify mask mandates.  That decision is Jacobson v. Massachusetts.

Jacobson was a reverend in Cambridge, Massachusetts.  Around 1900, the Cambridge board of health required all residents to get vaccinated against smallpox or pay a $5 fine.  The board of health was acting pursuant to authority expressly given to it by the state legislature.  At that time, the legislature enacted a plainly-worded statute which allowed:

the board of health of a city or town if, in its opinion, it is necessary for the public health and safety shall require and enforce the vaccination and revaccination of all inhabitants thereof and shall provide them with the means of free vaccination.  Whoever, being over twenty-one years of age and not under guardianship, refuses or neglects to comply with such requirement shall forfeit five dollars.

Jacobson, representing himself at trial, challenged the constitutionality of both the statute and the board’s requirement.  He lost at trial and again on appeal to the Massachusetts Supreme Judicial Court.  His case eventually made it to the U.S. Supreme Court where Jacobson’s arguments were again rejected. 

The Court’s decision, written by Justice Harlan, is one of the most favorable rulings ever made for expanding state governments’ police powers.

However, there are significant distinctions that can be made between the decision in Jacobson and the current imposition of masks.

Legislative Power vs. Executive Power

Almost every page of the Jacobson decision gives deference to the state legislatures’ power to make laws regulating health and public safety.  Here are just a few highlights:

Upon what sound principles as to the relations existing between the different departments of government can the court review this action of the legislature? 

(Perhaps Justice Harlan is unaware of the court’s power of judicial review established in Marbury v. Madison.)

The legislature has the right to pass laws which, according to the common belief of the people, are adapted to prevent the spread of contagious diseases.

No court, much less a jury, is justified in disregarding the action of the legislature simply because in its or their opinion that particular method was—perhaps or possibly—not the best either for children or adults.

Mask mandates, however, are mentioned nowhere in the statutory laws.  No legislature that I’m aware of has enacted laws concerning the wearing of masks.  (Though this may change in coming  years.)  Instead these mandates are being imposed solely by the executive branch using existing statutory laws that, at best, are being stretched—perhaps to the breaking point.

A good example of this is the statewide school mask mandate imposed by the Massachusetts education department and education board.  Unlike the vaccine mandate challenged in Jacobson, there is no clear statutory authority authorizing education officials to impose masks.  They are basing their authority on a single sentence in M.G.L. c. 69, section 1B which authorizes the education board to ensure that students attend school in a structurally safe environment, i.e., that all school buildings are up to code.

The board shall establish minimum standards for all public early childhood, elementary, secondary and vocational-technical school buildings, subject to the provisions of the state building code.  The board shall establish standards to ensure that every student shall attend classes in a safe environment.  (Emphasis added.)

No honest person could read this paragraph and say that it permits the board of education to mandate masks or make any other form of health policies for students.

The excessive deference given to state legislatures in the Jacobson decision should not now be extended to the executive agencies of each state.

$5 Fine vs. Second-Class Citizenship

As stated above, the fine at issue in Jacobson was a mere $5.  This would be about $150 in today’s currency.  According to the attorneys who argued Jacobson’s case before the Supreme Court, the $5 fine was the most extreme penalty ever imposed by a state for failure to comply with a vaccine mandate.  After showing that three quarters of the states had no penalty whatsoever for failing to submit to vaccination and that the remaining states had, at best, a nominal penalty for refusal, Jacobson’s attorneys noted: “None of these cases are as extreme as the decision in the case at bar.”

If a $5 fine is extreme, how should we define total exclusion from school, work, religious worship, or in-person commerce?  Those are the consequences of violating almost every state-imposed mask mandates.

The Court in Jacobson reserves the right for itself to strike down a state’s public health policy when the policy “is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law.” 

The Court notes,

The mode or manner of exercising its police power is wholly within the discretion of the State so long as the Constitution of the United States is not contravened, or any right granted or secured thereby is not infringed, or not exercised in such an arbitrary and oppressive manner as to justify the interference of the courts to prevent wrong and oppression.

It is arguable that the policies and penalties for failure to wear a mask (e.g., exclusion from school, work, religion, and commerce) rise to the level of a constitutional violation that may rightfully be addressed by the courts.

Smallpox vs. COVID

The Court in Jacobson went to great lengths to detail the long, successful history of smallpox vaccination in the western world.  In one of the lengthiest footnotes in Supreme Court history, Justice Harlan outlines the use of the smallpox vaccine beginning in 1808, nearly 100 years prior to the Court’s decision.

No such historical argument can be made regarding mask mandates.  And, unlike the smallpox vaccine, the efficacy of mask use in slowing the spread of COVID is highly questionable.

Here are a few key points from a recent study conducted by researchers from the University of Louisville:

– Randomized control trials have not clearly demonstrated mask efficacy against respiratory viruses, and observational studies conflict on whether mask use predicts lower infection rates.

– Case growth was not significantly different between mandate and non-mandate states at low or high transmission rates, and surges were equivocal.

– Mask mandates and use are not associated with slower state-level COVID-19 spread during COVID-19 growth surges.

No such uncertainty existed concerning smallpox vaccines at the time of Jacobson.  The vaccine mandate at issue in that case bears no resemblance to the mask policies at issue now.

Legal Challenge to Mass. School Mask Mandate

Many parents have contacted me about legally challenging the statewide school mask mandate. I’m working with Attorney Ryan McLane to prepare a class action lawsuit for that purpose. The more parents who join as plaintiffs, the more weight our case will carry in court. Please use the link below to add your name as a plaintiff. Please share this link and feel free to contact me with your questions.

Click here to join.

Opposing Mask Mandates and Discussing “Unmask Our Kids” Petition at the EL School Committee

Last night I spoke at the East Longmeadow school committee concerning the questionable legality of the statewide mask mandate proposed by Education Commissioner Jeffrey Riley. I also discussed the competing petitions for and against making masks optional for our school kids.

Please sign and share my petition to unmask our kids!

The Questionable Legality of a Statewide School Mask Mandate

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On August 20, Massachusetts Education Commissioner Jeffrey Riley issued a press statement informing the public that he will ask the Board of Education for authority to impose a mask mandate on all Massachusetts school children.

However, neither the commissioner nor the board has legal authority to implement public health policies. 

The Board’s authority is found in G.L. c. 69, § 1B.  It states,

The board shall establish policies relative to the education of students in public early childhood, elementary, secondary and vocational-technical schools.”  (Emphasis added.) 

The Board’s duties, according to the statute, are confined to such matters as establishing certification standards for teachers, reviewing federal grant applications, and auditing the academic performance of schools.  There is no power granted anywhere in the statute allowing the Board to create policies to slow the spread of a contagious disease or to increase vaccination numbers.  The legislature has already established regulations for such matters.  See G.L. 71, § 55 and G.L. c. 76, § 15, respectively.  Commissioner Riley and the education board do not have the authority to go beyond the scope of these laws.

G.L. c. 69, § 1B does state that “The board shall establish standards to ensure that every student shall attend classes in a safe environment.”

However, anyone who reads the sentence in its full paragraph can see that it applies to only the structural environment of the school buildings.

The full paragraph is as follows:

The board shall establish minimum standards for all public early childhood, elementary, secondary and vocational-technical school buildings, subject to the provisions of the state building code.  The board shall establish standards to ensure that every student shall attend classes in a safe environment.  (Emphasis added.)

Nevertheless, Riley’s press release expressly states that

The purpose of the [mask] policy is to encourage higher vaccination rates among students.

To further this point, he quotes Lt. Governor Karyn Polito:

Our goal remains to get as many people as possible vaccinated.  We hope that by instituting vaccine benchmarks among school populations we will create a real incentive for students and staff to get vaccinated so they can remove their masks.

This statement implicitly acknowledges that masks are a chronic burden to students.  Since the state of emergency ended in Massachusetts, the executive branch no longer has the authority to impose such a burden on anyone.

Parents across the state need to speak out and challenge these measures now before they are implemented. If they are put into force, they need to be immediately disputed in court.