Restaurant owners, hair salon owners, pastors, and a Christian school are asking a state court to overturn Massachusetts Governor Charlie Baker’s executive orders that seriously limit what they can do during the coronavirus emergency.
The plaintiffs, whose lawyers filed a complaint in Worcester Superior Court on Monday, June 1, say Baker has been violating the state constitution by attempting to issue orders as if they are laws – which, they say, have to be approved by the state Legislature, not merely promulgated by the governor.
Some business owners aren’t interested in waiting long.
“Why can’t we open our restaurants? I’m tired of waiting. We’ve been complacent,” said Carla Agrippino-Gomes, the owner of Antico Forno in the North End of Boston, during a Zoom conference on Monday, June 1.
She said she and about 20 other restaurant owners in the North End are thinking about re-opening their restaurants on Friday, June 5 – three days before the governor plans to allow restaurants to open for outdoor dining only.
She said state officials should issue guidelines for restaurants immediately, and that those guidelines should allow restaurants to operate in short order.
“And not 25 percent, not 50 percent, but 100 percent,” Gomes said, referring to restaurants’ capacity.
She said restaurants can sanitize their buildings, require masks, and take other health precautions.
“And I think we can do it right. And I think we can do it safely. And we may be doing it Friday. So like I said, let us do their jobs. Because we know how to do them. They don’t,” Agrippino-Gomes said.
She is one of 10 plaintiffs. They include hair salon owners, the owner of a tanning salon, the owner of a gym, two pastors, and the headmaster of a Christian school on Cape Cod.
The complaint argues that the governor has bent the state’s Civil Defense Act of 1950 to cover areas it doesn’t apply to – and that the state’s public health laws largely empower local boards of health, not the governor, during public health emergencies.
The Civil Defense Act of 1950, the complaint states, “is a Cold War-era statute designed to aid in the defense of Massachusetts from foreign invasions, insurrections, and catastrophic events like hurricanes and fires.”
Baker’s closures and other limits on commercial and public life aren’t legal, the complaint argues, because he doesn’t have the authority to issue them.
“These are not the lawful powers of a governor,” the plaintiffs’ complaint states.
Michael DeGrandis, a lawyer with New Civil Liberties Alliance, which is representing the plaintiffs, noted that widespread outbreaks of disease aren’t new, and that they happened at the time the Founding Fathers were putting the federal constitution together.
“What you’re seeing is the practical effect of what happens when you don’t follow constitutional procedure,” DeGrandis said.
The plaintiffs’ lead lawyer says he’s not asking for a temporary restraining order from a judge, which could immediately stop the governor’s orders from being enforced. Instead, he said, he’s giving the governor a chance to walk back some of the burdensome restrictions before asking a judge for an injunction against them. He said he also wants to give the state Legislature a chance to pass laws more in tune with what local business owners need.
He said the lawsuit is important not only for what is going on now, but for the more distant future, because the governor needs to be stopped.
“Even if he said tomorrow, like, ‘Never mind, folks. Everybody open up’ — This could happen again. I mean, some of the medical experts are saying that we’re going to get a rebound in the fall or in the winter. Is he going to shut down the state again?” DeGrandis said. “Again, this isn’t a civil defense crisis. It’s not a civil defense state of emergency. He doesn’t have the authority to do this. We need to make sure now that he doesn’t do this again.”
DeGrandis said state legislators and local boards of health tend to be more responsive to the needs of local business owners because they have a more local focus than the governor of the state – which is why the state Legislature has certain powers the governor doesn’t.
DeGrandis’s complaint says what the governor is doing violates the principles of the state’s constitution, which is considered a model for the U.S. Constitution put together seven years later:
John Adams, the principal architect of the Massachusetts Constitution of 1780, insisted upon a robust and unequivocal separation of powers in the Massachusetts Constitution, so that the Constitution would establish “a government of laws and not of men.” Governor Baker has ignored the separation of powers by usurping the police power — the Commonwealth’s authority to regulate the health and welfare of its people — from the General Court. The police power is the exclusive prerogative of the legislature, and only the legislature may exercise it, or delegate its authority to the executive branch. However well-intentioned his motives, by invoking the Civil Defense Act instead of the Public Health Act, the governor has wrought extensive constitutional damage, and Massachusetts now has a government of men, not laws. The citizens of the Commonwealth threw off that brand of government once before, under King George III, and they wrote the Massachusetts Constitution to prevent its return.
During the Zoom conference Monday morning, DeGrandis acknowledged that many state legislators might prefer the cover of having the governor steer the ship and take any flak.
“But we hope to force them to do their jobs,” DeGrandis said.
A reporter pointed out that some local boards of health may not be interested in allowing certain businesses to open.
“If you give it to the local boards of health, it doesn’t mean that your local board of health will be entirely responsive to what you want or what you need. But they’re in your community. You can influence them,” DeGrandis said.
Governor Baker wasn’t asked about the lawsuit during his coronavirus press conference Monday afternoon, but he seemed to address it indirectly in his prepared remarks before he took questions.
“As we combat the pandemic, we remain in a real struggle with how to carry out the bedrock principles of democracy with the best medical guidance available to fight an infectious, contagious disease,” Baker said. “By and large the people of Massachusetts have made it work. We’re balancing the fight against the virus with the fight for what we as individuals all believe in. But it’s hard, and it’s not over.”
The plaintiffs are:
Carla Agrippino-Gomes, the owner of Antico Forno and Terramia restaurants, of Boston
Dawn Desrosiers, owner of Hair 4 You, a hair salon in the central Massachusetts town of Hubbardston
Nazareth and Susan Kupelian, owners of Naz Kupelian Salon, a hair salon in Lexington
Thomas Fallon, owner of Union Street Boxing, a gym in Billerica
Kellie Fallon, owner of Bare Bottom Tanning Salon, in Burlington
Robert Walker, owner of Apex Entertainment, a family entertainment center in Marlborough
Devens Common Conference Center, a convention facility in Devens, which is a regional enterprise zone in the towns of Ayer and Shirley
