Messmer: Gov can't enact criminal penalty with mandate

Michael Conroy/The Associated Press
In this Thursday, April 30, 2020 file photo, Gov. Eric Holcomb wears a mask in Kokomo. Indiana will have a statewide face mask mandate starting next week, joining many other states in the attempt to slow the spread of the coronavirus.


When Gov. Eric Holcomb announced a statewide mask mandate on Wednesday, State Sen. Mark Messmer was fine with that request.

But when Holcomb went on to say that not complying with the mandate could be a class B misdemeanor, Messmer’s legislative radar sounded.

“The governor has got regulatory authority under the Emergency Powers Act,” Messmer said Thursday evening. “But my initial thought was, coming up with a criminal penalty for failure to follow a rule or regulation is something outside of, you know, his statutory authority.”

When he heard the governor’s announcement, he was at a meeting in Indianapolis with other Republican senators.

“Several of us that were at a meeting all agreed it was worth getting an opinion on,” he said. “Most of the senators at the meeting that were attorneys all felt it was clearly above his statutory and constitutional authority to enact a criminal penalty for failing to follow a rule.”

So Messmer and Sens. James Buck, Blake Doriot, Aaron Freeman and Jim Tomes requested an official opinion from Indiana Attorney General Curtis Hill.

Hill’s six-page opinion confirmed what the senators thought.

“By declaring that a violation of his proposed executive order requiring masks is a class B misdemeanor under the EMDL (Emergency Management and Disaster Law), the governor has taken conduct that has not been specifically criminalized by the General Assembly and unilaterally declared it as criminal,” Hill wrote. “The General Assembly has not clearly delegated this law-making authority to the governor, and cannot delegate law-making power.”

Hill further states in the opinion that Holcomb does not have the authority to make the mandate.

“The governor has various powers under the EMDL, although the limitations of those powers are not clearly spelled out in the law,” Hill wrote. “The EMDL does not provide that a governor may issue a mandate on wearing masks.”

Messmer states that Holcomb issuing the mandate was not the problem. “He could technically say, ‘I require all Hoosiers to wear a mask.’ He could make that statement. But he can’t threaten jail time,” Messmer said. “He doesn’t have that authority.”

Messmer and other leaders from the Indiana Senate and Indiana House of Representatives talked to Holcomb about the matter Thursday morning, and he agreed that no penalty will be stated in the executive order. “He said that when he actually signs the final executive order, the criminal enforcement penalty of a Class B misdemeanor will come out,” Messmer said.

A legsislative body must enact the laws for enforcement. That could be at the state level — with the General Assembly — or at the local level.

“Ultimately, it comes down to enforceability,” Messmer said. “That can come from a local unit of government — a city council, county commissioners. There’s lots of local rulemaking authority, with ordinances and enforcement penalties like infractions and fines.”

Messmer said that personally, he will comply with any entity that requests he wear a mask in their facility. “If a business owner tells me you need to have a mask to come into my place of business, I’m going to do it. The local government buildings have had a mandate: Wear a mask if they’re going to come into our building. I’m happy to do it.”

“If the statistics in a local geographic area warrant it, and it seems to be a prudent step, then local officials have the ability to do that. If local officials feel it’s in the best interest of their community, they have the authority to do it. And I would gladly support their decision, for or against.”

And he will comply with the state mandate. “Even if there is not a penalty, I will comply,” Messmer said.

Hill wrote in his opinion document, “If the governor believes it is necessary to enact a mask wearing mandate before the beginning of the next legislative session, he should call a special session of the General Assembly.”

Holcomb has not indicated a desire to call a special session about this, Messmer said. The governor indicated at Wednesday’s press conference that he is hoping Hoosiers will comply for the public good.

“Our approach since day one, since the very beginning of this pandemic, has been an approach of education and appealing to one’s civic duty and public good,” he said at the press conference. “You might even say public pride and being part of the solution. And it will continue to be.”

Messmer has heard backlash from people, accusing him and the other senators of trying to stand in the way of the governor’s ability to protect Hoosiers. That is not the case, he said.

“No, I’m trying to stand up for the Constitution, and what it says,” Messmer said. “We are a co-equal branch of government, and we both have our set of responsibilities. I didn’t feel it was improper to ask for opinion. The attorney general gave us one. The governor seems to be willing to comply with that and respect that. The process played out as it should.

“If the governor thinks he really needs it to have some state-level enforcement, then he needs to call us in.”

Messmer encouraged the public to do their best to follow good public health procedures. “Wash your hands thoroughly. If wearing a mask is going to reduce the spread, people should be willing to do that,” he said. “Everybody needs to be disciplined and try to help do what you can to keep it from spreading.”

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