UPDATED, Aug. 24: An Arlington resident has challenged the town's legal authority to require residents to wear masks as a public-health measure, and town counsel has responded with his reading of the laws involved.
Stephen Harrington, a former Town Meeting member, filed a public-records request on Thursday, Aug. 19, questioning the legal basis of the order issued by the town Board of Health a day earlier.
In an email to Padraig Martin, lead health-compliance officer, Harrington wrote: "If I understand correctly, the Arlington Board of Health is asserting MGL Title XVI Chapter 111 Sections 31 and 104 . . . are the basis for the mask mandate of Aug. 18, 2021. Please, correct me if I am misunderstanding."
"These two sections do not appear responsive to the request and open more questions.
"For example, Section 31 is for sanitary code regulations and requires public notice two weeks prior to the public hearing and appears to have no bearing for a mask mandate. Section 104 covers removal of public health notices, again with no bearing on requiring residents, businesses and visitors to wear masks."
Bases of town authority
YourArlington asked Town Counsel Doug Heim for comment, and he responded Friday, Aug 20:
" ... Massachusetts General Law vests local boards of health with both the duty and responsibility to promulgate 'reasonable health regulations,' (c. 111 sec. 31) including specifically regulations with respect 'disease dangerous to the public health,' where the board of health 'shall use all possible care to prevent the spread of the infection and may give public notice of infected places by such means as in their judgment may be most effectual for the common safety.' (c. 111 sec. 104). Practically speaking, in the past this meant, among other things, publicly identifying businesses and homes as subject to quarantine.
"In other words, the state law already vests a local Board of Health with the responsibility and authority to prevent the spread of dangerous infectious disease. These laws were rooted in highly localized experiences of diseases, which could occur anywhere or statewide, but often manifested in outbreaks in communities in a world before the advent of common vaccines.
"For example, before the measles vaccine in 1968, measles outbreaks were recurrent dangers, especially in Boston. Local health officials had to rely upon other means than vaccination to contain them, but of course would not appeal to the state Legislature for a statewide measles quarantine or other DPH order.
"Thus, when measles outbreaks occurred in 2019, the Boston Health Commission responded locally, which they were empowered to do without an executive order from the governor or an act of the Legislature.
His comments included allowing for disagreement.
"Folks may well disagree with whether or not mask requirements constitute 'reasonable health regulations' in response to current Covid-19 conditions. However, as Chief Justice Roberts noted recently the majority opinion upholding California's capacity limitations on houses of worship in the matter of South Bay Pentecostal Church v. Newsome:
"'Our Constitution principally entrusts "[t]he safety and the health of the people" to the politically accountable officials of the States "to guard and protect." Jacobson v. Massachusetts, 197 U. S. 11, 38 (1905). When those officials 'undertake to act in areas fraught with medical and scientific uncertainties,' their latitude 'must be especially broad.' Marshall v. United States, 414 U. S. 417, 427 (1974). Where those broad limits are not exceeded, they should not be subject to second-guessing by an 'unelected federal judiciary,' which lacks the background, competence, and expertise to assess public health and is not accountable to the people."
Returning to specific local authority, Heim wrote, "the Board of Health is appointed by the town manager subject to the approval of the Select Board. If Arlington residents want to petition their local appointed elected and appointed officials to take a different course of action regarding mask orders, they may of course do so.
"There's also nothing preventing an aggrieved person from filing suit against a local government if they think there's a genuine basis to challenge the constitutionality of an order or ordinance. That said, I strongly suspect the Courts of the Commonwealth and 1st Circuit would defer to public health experts and local officials on this matter for the reasons Justice Roberts articulated."
As of Aug. 19, face coverings were required for all persons 2 years old and over at all times when inside public or private spaces that are open to the public, except for those unable to wear a face covering because of a medical condition or disability.
The vote was taken because of an increase in Covid-19 Delta variant infections among both unvaccinated and vaccinated residents since July, and an advisory from the Centers for Disease Control and Prevention recommending that everyone in areas of substantial and high transmission wear a mask while indoors regardless of vaccination status.
Harrington has been asked to comment about whether he would consider filing a petition or lawsuit, as Heim describes.
A poster identified as "Stephen" provided the first notice about this complaint on Patch Neighbor comments.
June 1, 2021, to present: Ongoing update of town Covid cases
This news summary was published Monday, Aug. 23, 2021, and updated Aug. 24, to add link to school decision.