8/25/20 Dave Bangert

Dave Bangert, left, talks to Michael Bryant, who filed a lawsuit against West Lafayette Mayor John Dennis in July. Bangert accepted a buyout offer on Monday from Gannett, the largest newspaper company in the U.S., which owns the Lafayette Journal & Courier.

A judge ordered Tuesday that West Lafayette Mayor John Dennis does not have executive authority to impose a monetary fine for citizens who fail to wear masks or face coverings.

Tippecanoe County Circuit Court Judge Sean Persin declared in a ruling filed Tuesday morning that the mayor's July 13 executive order, which requires masks in most public and private spaces where social distancing is impossible, constitutes executive overreach because it threatens fines for noncompliance.

Comparing the directive to Indiana Gov. Eric Holcomb's statewide mask mandate, the judge cited the lack of any monetary fine written into the governor's order as a point of distinction.

"Accordingly, the Court hereby declares that the Mayor's Executive Order 2020-1 is void to the extent it is 'punishable by a fine of $100 for a first offense and $250 for each subsequent offense,'" the judgment reads.

No portion of the mayor's executive order can exceed the governor's, the judge decided.

Persin said the West Lafayette City Council is free to enact legislation to impose fines for failure to adhere to mask-wearing policies. The vast majority of the council, composed of eight Democrats and one Republican, has voiced support for policies requiring citizens to wear face coverings to prevent the spread of the coronavirus.

"We are in agreement to move forward with ostensibly the exact same mask mandate, including the fines," Nick DeBoer, the West Lafayette city councilor for District 1, said following the ruling.

Dennis's order was challenged by Tippecanoe County resident Michael Bryant, 54, who alleged the order was unconstitutional because it "unreasonably violates his freedom of speech, freedom to decide whether to wear a mask, freedom to exercise political expression and freedom to peaceably assemble," according to the judge's ruling.

In a hearing on Aug. 25, Persin made clear he planned to dismiss the aforementioned charges because the evidence failed to convince him. The fifth count, which states the mayor overstepped his authority in issuing the mask mandate, is the challenge Persin emphasized as viable during the hearing.

The city's main defense is that Dennis had power to enforce the mask mandate based on Indiana's nuisance law. City lawyer Zachary Williams argued in the hearing that the policy is valid because the coronavirus is "injurious to health" and might "interfere with the comfortable enjoyment of life or property," both tenets of nuisance law.

Without the city council passing legislation, the judge states, nuisance law does not suffice to provide the mayor authority.

"If the court accepted this interpretation," Persin writes in his judgment, "the Mayor would appear to have unlimited authority to unilaterally sanction anything he deems unhealthy without any input."

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