Agenda - Council - 04/27/2021 - Laserfiche WebLink

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opinion that precedent would be set overruling the resolution would appear to not be well researched. City Attorney Langel explained that his comment was that there have been cases that used the arguments within the resolution in court and those cases have failed. He confirmed that a district court order is technically not precedent setting but is indicative to an argument. He stated that the point he was making at the Council meeting was simply that a number of different arguments have been made in the state and federal courts, outside of religious liberty, that have failed. Councilmember Howell commented that a district court ruling does not set precedence and the mandate is of disputed legality and contradictory to other state law. She commented that her issue with the legal advice is that the City does not have a right or obligation to choose sides between a dispute between branches of the government. She commented that there is continued litigation stating that the Governor's Orders are unconstitutional. She stated her position is that the City choosing a side would make it liable for enforcing such action that is later deemed unconstitutional. She asked why the resolution would not protect the City from facing liability. City Attorney Langel disagreed with the characterization that the Executive Order is of dubious legality. He stated that until such time the Executive Order is overturned by a court, it is considered state law. He stated that these Executive Orders have been challenged multiple times and with the exception of religious liberty challenges, the Orders have been upheld and remain state law. He stated that someone can disagree with it, just like they could disagree with whether a seatbelt has to be worn, but it still remains as law until such time it is overturned. He commented that therefore there is not liability for the City to enforce the law, similar to enforcement of the speed limit. He stated that there is not a conflict the City has to stay out of. He commented that the job and obligation of law enforcement is to enforce the law. Councilmember Howell commented that there is state statute, 609.735, that requires someone not to wear a mask or cover their face and therefore the Executive Order would conflict with that. She stated in her opinion this would be choosing one law over another to enforce. City Attorney Langel commented that 609.735 is the mask law which has been challenged a few times and has been overruled in federal court. He stated that the idea of 609.735 is that you are not permitted to conceal your identity and the argument has been that a mask mandate is not meant to conceal one's identity. He stated that Councilmember Howell may have the opinion that there is an issue or conflict but that has not been upheld by a court to this point. Councilmember Howell commented that the statute exists and therefore enforcing the mask mandate would be in violation of the state statute. City Attorney Langel commented that the two courts that have looked at this had no hesitation that 609.735 impacts or is relevant to the mask mandate because they go after different things, a health issue and concealing one's identity for a criminal act. He stated that he has no difficulty telling any Council that statute is not a valid basis for telling a police officer not to enforce an Executive Order. City Council / April 13, 2021 Page 14 of 20