By Artemis Moshtaghian, Holly Yan and Sonia Moghe, CNN
New York’s state mask mandate is still in effect — for now.
After two days of court hearings, a judge ruled the mandate will stay in place at least until the end of the week, so all sides can respond.
On Monday, a judge struck down the mandate, but an appellate court judge on Tuesday put it back temporarily after the state attorney general’s office tried to block the new ruling from going into effect, citing “irreparable harms.”
The judge on Monday ruled that the state’s Department of Health did not have the authority to enact such a mandate without approval from the legislature.
But Attorney General Letitia James’ office filed a motion to stay the ruling.
“A judge has granted our motion to keep New York’s mask mandate in place while our appeal process continues,” Attorney General Letitia James tweeted after the appellate judge’s stay. “Protecting the health of New Yorkers during the #COVID19 pandemic is our top priority.”
An attorney for the plaintiffs pointed out that the stay is “temporary and standard in these situations.”
“We get to file a reply, which is due Friday,” attorney Chad J. LaVeglia said in an email to CNN. “Then Judge (Robert) Miller can carefully consider all the factors before rendering a determination as to whether the Decision and Order will be stayed pending the appeal.”
The attorney general’s court filing argued the order, “if not stayed, will allow individuals to refuse to wear face coverings in indoor public settings where the risk of COVID-19 spread is high, including in schools where many children remain unvaccinated against COVID-19.”
“The irreparable harms to public health that would result demonstrate that the balance of equities and public interest alone warrant a stay,” the filing stated.
The strife marks yet another intrastate conflict between state officials and schools over mask mandates — part of the nationwide debate about civic obligations and freedoms in the Covid-19 pandemic.
Despite the judge’s the ruling striking down New York state’s mask mandate, the state Education Department says schools “must continue to follow the mask rule.”
“It is SED’s understanding that the Department of Health will appeal the Nassau County Supreme Court decision, which will result in an automatic stay that will unambiguously restore the mask rule until such time as an appellate court issues a further ruling,” the Education Department said in a statement distributed to schools Monday night and obtained by CNN.
Gov. Kathy Hochul said she “strongly” disagreed with the ruling, and the state’s attorney general filed a notice saying the governor and the state health department will appeal the judge’s decision.
“My responsibility as Governor is to protect New Yorkers throughout this public health crisis,” Hochul said in a statement, “and these measures help prevent the spread of COVID-19 and save lives.”
While the legal saga plays out, school districts are split on whether to keep or remove mask mandates.
At least 15 New York school districts have already announced mask wearing is now optional, according to CNN review. At least nine school districts and the Archdiocese of New York have indicated they’ll keep the mask mandate in place.
Other states have had legal battles over mask mandates. On Monday, seven Virginia school boards sued the state’s new governor over his executive order banning mask mandates.
How the New York mask mandate went down
New York’s state legislature passed a bill in March limiting the governor’s ability to issue emergency orders.
But as the number of new Covid-19 cases rose in December, Hochul announced a temporary mask mandate that required New Yorkers to wear a mask in all indoor public spaces unless businesses implement a vaccine requirement.
In a December 10 statement, State Health Commissioner Dr. Mary Bassett supported the mask rule.
Despite criticisms from some local officials, the measure was extended two weeks past its initial end date of January 15. Violators face fines of up to $1,000 and other civil and criminal penalties.
The average number of new Covid-19 cases in New York state has steadily dropped since January 9, when a weekly average of 595,095 daily new infections were reported, according to data from Johns Hopkins University.
By January 24, that number had dropped to 166,538 average daily new cases.
In his opinion Monday, Nassau County Supreme Court Judge Thomas Rademaker said because New York was no longer under a state of emergency when the mask mandate was announced, the governor and health commissioner did not have the additional authority to order such a mandate, adding the mandate is now unenforceable.
“While the intentions of Commissioner Bassett and Governor Hochul appear to be well aimed squarely at doing what they believe is right to protect the citizens of New York State, they must take their case to the State Legislature,” Rademaker wrote.
“Should the State Legislature, representative of and voted into office by the citizens of New York, after publicly informed debate, decide to enact laws requiring face coverings in schools and other public places then the Commissioner would likely be well grounded in properly promulgated and enacted rules to supplement such laws.”
In New York state, lower level courts are called supreme courts. Typically, decisions from those trial courts can be appealed to Appellate Divisions of the Supreme Court, which is the intermediate level of judicial review, and then to the Court of Appeals, which is the highest state court in New York.
A father who fought the mask mandate is elated
Attorney Chad LaVeglia, the father of a 6-year-old and a 3-year-old, is one of the parents who challenged the state’s mask mandate.
“This is not a commentary on (how) the pandemic is being handled whatsoever — it’s how the government is handling the power it’s been given and entrusted with by the people,” LaVeglia said.
“Further, folks could wear masks and still take whatever protective measures they feel is appropriate.”
After the judge’s ruling, LaVeglia told CNN: “We’re ecstatic. Children are excited to go back to school and to see smiles for the first time in a long time.”
He said more than a dozen parents joined as petitioners in the case.
“I worked on this case pro bono,” LaVeglia said. “A bunch of us parents got together. … We got together and didn’t agree with having our children be forced to wear masks at school.”
Judge says his ruling was about protocol, not about masks themselves
Rademaker’s decision was about only whether the mandate was properly enacted, he wrote.
“To be clear, this Court does not intend this decision in any way to question or otherwise opine on the efficacy, need, or requirement of masks as a means or tool in dealing with the COVID-19 virus,” the judge wrote.
“This Court decides only the issues of whether the subject rule was properly enacted and if so whether same can be enforced.”
Nassau County Executive Bruce Blakeman, who took office this month, signed an executive order allowing school boards in the densely populated Long Island county to determine whether schoolchildren should be required to wear masks.
After the judge’s ruling, Blakeman tweeted: “This is a major win for students & parents.”
A spokesperson for the New York mayor’s office said earlier Tuesday the mask mandate would remain in place for the city’s public schools.
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CNN’s Artemis Moshtaghian and Sonia Moghe reported from New York, and Holly Yan reported from Atlanta. CNN’s Laura Studley, Kristina Sgueglia, Merriam Mikhail and Mirna Alsharif contributed to this report.