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'This is a health issue and should not be turned into a criminal issue': Southwest ND sheriffs refuse to enforce mask mandate

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North Dakota Gov. Doug Burgum issued a statewide mask mandate late Friday evening, as confirmed coronavirus cases continued to rise to record levels. The move was almost immediately rebuked by many rural western North Dakotans who continue eschewing the wearing of masks. On Monday, many businesses continued their commercial enterprise with customers and staff sans masks. (Dickinson Press file photo)
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DICKINSON, N.D. — Multiple southwest North Dakota sheriffs are refusing to enforce Gov. Doug Burgum's statewide mask mandate.

Burgum issued the mandate Friday evening, Nov. 13, as confirmed coronavirus cases continue to rise to record levels. His administration released a series of mitigation measures that went into effect Sunday night and will remain in effect until Dec. 13.

Face coverings will now be required in indoor business and indoor public settings, as well as outdoor public settings where physical distancing isn’t possible. Interim State Health Officer Dirk Wilke signed the order, which includes exceptions for children under age 5, individuals with a medical or mental health condition or disability that makes it unreasonable to wear a mask, and for religious services.

The order is intended to alleviate currently overwhelmed hospitals.

“Our doctors and nurses heroically working on the front lines need our help, and they need it now," Burgum said in a video message on Friday. "Right now, the data demands a higher level of mitigation efforts to reverse these dangerous trends, to slow the spread of this virus and to avoid the need for economic shutdowns."

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The move was almost immediately rebuked by many rural western North Dakotans who continue eschewing the wearing of masks. On Monday, many businesses continued their commercial enterprise with customers and staff sans masks.

In statements released by the Stark, Hettinger, Golden Valley and Bowman County sheriff’s offices, enforcement of the mandate became a contentious subject.

The Golden Valley Sheriff’s Office said that they would not be issuing citations for mask and capacity requirements as the mandate pertained to public health and not criminal acts.

“Our aim is to protect our citizens from unjust actions,” Sheriff Roger J. Clemens said. “It is ultimately up to individual business owners to comply with Governor Burgum’s guidelines. However, please note that businesses reserve the right to refuse service as long as they do not infringe upon discrimination law. Wearing a mask, or not wearing a mask, is not a protected class under discrimination law.”

Bowman County Sheriff Frank T. Eberle echoed the sentiments of overreach.

“Most have seen the Governor's mask mandate. Be comforted, my deputies nor I will force this mandate on any of Bowman County,” he said. “I encourage all citizens to not only consider the mandate, but also consider others. This being said, privately owned businesses can deny you in their business. Be safe out there friends and family, we will get through this storm.”

Hettinger County Sheriff Sarah D. Warner also said her department will not be issuing citations: "This is a health issue and should not be turned into a criminal issue."

Morton County Sheriff Kyle Kirchmeier said Monday that his department has always prioritized public safety over enforcement, educating the public regarding their behavior and reserving penalties for egregious criminal activity.

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“In addition, my office has a longstanding partnership with Custer Health and has always worked closely with them regarding concerns of public health. We will continue to do so throughout this pandemic.”

Stark County Sheriff Corey Lee said that his department would focus on education and would provide citizens who are not wearing masks with a copy of the new mandate, but would not enforce penalties with citations.

"I understand the hardships we are facing in this unique challenge. We just buried my grandfather last Tuesday who died of COVID, and it wasn't a pleasant death. I know firsthand the devastation; I know it's a real thing and I mentioned that in my statement. But just because it's the right thing to do doesn't mean that it's constitutionally right," Lee said. "People still have constitutional rights, and I'm sworn to protect those rights. I take honoring my oath seriously."

Legislators respond

Western North Dakota elected officials shared similar sentiments, including North Dakota's District 36 Rep. Luke Simons. Simons, who retained his seat with a landslide victory during the 2020 election.

“No governor should have that kind of power to tell people what they can and can’t do outside of their homes or in their businesses. Businesses should have the right to do what they want in their own businesses,” Simons said. “He did this for a specific reason in releasing the mandate so late in the evening on a Friday. Last time he did that he got a tremendous pushback and had to eat crow, so he did this so it could sit over the weekend and take effect with no political repercussions.”

Simons says he predicted the move by Burgum in a Facebook post the week prior..

“We broke away from England for a specific reason — because we were tired of kings having mandates — and so when the governor tells me he is going to break our Bill of Rights, I have an issue with that,” Simons said. “I’m cutting hair right now on a client who is not wearing a mask; I’m not wearing a mask. My other barbers may wear a mask and any client that wants to are certainly welcome to, but I think the sign on my door sums it up pretty well. I leave it up to free people to do as they want to.”

Simons said he supports the sheriffs in Stark, Hettinger and Bowman counties who refuse to effectuate the mandate.

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“The sheriff is the constable in the Constitution and as such he or she swears an oath to the Constitution and not the Century Code. He or she is to stand up for the Constitution and honor his oath,” he said. “It would be no different than to a military person who swears an oath to the Constitution of the United States. They don’t swear an oath to the president or any man, but rather to the Constitution. So if the president says 'Hey, we’re going to kill all the redheaded stepchildren of the world,’ the military at that point would say, ‘no sir, you are out of order and that is unconstitutional.’”

Simons added, “So when the sheriff feels like someone in higher government is violating the Constitution, at that point he or she is the safeguard between the people and their tyrant government.”

North Dakota's District 36 Rep. Mike Schatz echoed the concerns of the others in a toned-down comment.

“I don’t like when any government official releases a mandate or law late in the evening as you’re going into a weekend, because you are not going to have the same discussion as if you released it at 9 a.m. on a Monday morning,” Schatz said.

State Senate Majority Leader Rich Wardner said he was unaware of the move until moments before the decision was announced.

"He let me know he was doing it right before he did it," Wardner said. "He can do it; he has the constitutional right to do it, though I would have preferred he didn't do it. I think we can make it through this thing without any more mandates, but he has health providers, doctors, nurses pounding on him saying he has to do more. He's trying to keep businesses open and schools going."

Schatz argued that the decision should rest with the Legislature.

“He can easily get together with the leadership of both houses,” he said. “The only ones, however, who should determine if this is an emergency is the Legislature. We’re not being consulted, and that’s what is most annoying about all of this. He has the power to call us back into session and we have the power to call ourselves back into session, because we have three days left.”

Wardner said having the Legislature return to session would serve only as a political move.

"We could call ourselves back, but we don't have much time, because the end of the term is Nov. 30. If we were to come back, the newly elected people wouldn't be part of that," Wardner said. "Everyone thinks we can call a special session to do a concurrent resolution and bingo, this all blows away, but that isn't what the Constitution says. We've got some major legislation to do, and there's no question that we are going to make adjustments and take a real good look at these executive orders."

Wardner added, "Our attorneys are looking at this to make sure we got it right."

Schatz cited questions on the enforcement of the mandate.

“Since this is not a law and hasn’t been passed by the Legislature, local law enforcement have taken an oath to enforce the law, and they haven’t taken an oath, I don’t think, to enforce mandates by a governor or by an agency,” he said.

Despite the lack of communication between the governor and the Legislature, Schatz said that he understood the reasoning behind the mandate.

“Wearing a mask and social distancing is common sense, and to slow this down you have to do something,” he said. “Your chances of spreading the infection while wearing a mask are dramatically reduced, so it makes sense.”

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