Governor Charlie Baker declined to comment today on a lawsuit claiming he has exceeded his authority under Massachusetts law by ordering the coronavirus emergency shutdowns.
“Normally, we don’t really speak to lawsuits when they’re in process. Obviously, we’re aware of the fact that it was filed. When people issue decisions, we usually comment on that. But I don’t usually comment on pending litigation,” Baker said during a coronavirus press conference Saturday, June 6, answering a reporter’s question.
The lawsuit was filed Monday, June 1 in Worcester Superior Court by a restaurant owner, two hair salon owners, a gym owner, a tanning salon owner, a family amusement business, a conference center, two pastors, and a Christian school.
They are asking the court for a declarative judgment stating that the governor’s coronavirus executive orders are illegal and void and to issue an injunction preventing the governor from enforcing them.
“A health crisis — even one the magnitude of the COVID-19 pandemic — does not empower a chief executive to make law. Undeniably, COVID-19 is a contagious and sometimes deadly virus. It is cause for great public concern and warrants action to protect those at risk. But fear of the virus cannot justify suspending the constitutional order of Massachusetts government,” the plaintiffs’ complaint states.
Governor Baker declared a state of emergency because of the coronavirus pandemic on March 10, and since then he has issued a series of executive orders limiting activities to try to limit the spread of the virus.
But the plaintiffs’ complaint says the Civil Defense Act doesn’t apply to the coronavirus emergency because it was meant for times of foreign invasions or civil unrest after a cataclysm. They also argue that the public health statute empowers public health officials to take certain measures to prevent the spread of disease such as quarantining the sick and limiting travel, but does not allow the governor to claim sweeping authority over businesses, churches, and public life.
The Massachusetts Civil Defense Act of 1950, titled “An Act To Provide for the Safety of the Commonwealth During the Existence of An Emergency Resulting From Disaster or From Hostile Action,” was approved July 20, 1950, 25 days after the beginning of the Korean war. The governor at the time, Paul Dever, a Democrat, justified it by arguing that the state was unprepared for an atomic bomb attack on Boston. The original bill came with a sunset provision making it inoperative July 1, 1952, but the state Legislature subsequently extended it.
The plaintiffs’ complaint filed earlier this week notes that the civil defense statute spells out seven situations when the governor can invoke it – none of which, the complaint states, is present in the coronavirus emergency. Those situations are: a declaration of war by Congress; a statement by the president that the state is threatened by an enemy; a disaster stemming from an attack; a riot or other civil disturbance; a natural disaster such as a flood, fire, or earthquake; a drought that threatens the supply of water or food; or the release of radiation from a nuclear power plant.
Chapter 639 of the Acts of 1950. Source: Massachusetts state web site: https://www.mass.gov/doc/chapter-639-of-the-acts-of-1950-civil-defense-act-mema-law
The plaintiffs maintain that Governor Baker has violated the separation of powers provided in the Massachusetts Constitution by its author, John Adams, in 1780, by disregarding or modifying laws passed by the state Legislature without legislative approval.
“Fear of a virus, even one that targets a vulnerable population (such as the elderly in the case of coronavirus), does not and cannot justify abandoning constitutional governance,” the plaintiffs’ complaint states. “The legislature has the authority to enact laws, not the executive, no matter how well-intentioned the executive may be.”
If the state government’s executive branch needs certain powers to deal with the coronavirus situation it doesn’t currently have, the state Legislature could approve laws to give the executive branch that power, the complaint states.
“Protecting residents of the Commonwealth from the dangers of the COVID-19 health crisis – or any pandemic, for that matter – does not require the powers of the immense and pervasive scope of the Civil Defense State of Emergency powers,” the plaintiffs’ complaint states. “Since there is no invasion, civil unrest, or destroyed infrastructure, there is no need to suspend law – the legislature is free to amend or annul any statute, as the health crisis warrants.”
The governor’s coronavirus executive orders have “flipped the constitutional design of Massachusetts government on its head” and “have indefinitely suspended civil liberties or subjected them to executive whim,” the complaint states.
In recent weeks the governor has eased some of the coronavirus restrictions.
Governor Baker on March 23 limited most public gatherings to 10 people – including church services – but on May 18 he authorized churches to hold public services as long as the congregation does not exceed 40 percent of the capacity of the building and congregants wear masks and keep social distance of at least 6 feet.
Baker announced on Saturday, June 6 that Phase Two of the re-opening of the economy in Massachusetts will start on Monday, June 8, allowing certain businesses and other activities to resume under certain restrictions. Restaurants, for instance, will be allowed to serve patrons outdoors.
Schools are currently scheduled to be allowed to resume “normal operations” on starting June 29, which is after the current school year.
But the complaint contends that the plaintiffs have suffered harm the governor had no right to inflict on them, and that even the phased re-opening doesn’t address the damage.
“To the extent that Governor Baker has ‘allowed’ some of these Plaintiffs to reopen, the limitations placed on them and their businesses perpetuate the economic harm caused by the declaration of a Civil Defense State of Emergency. These economic losses are permanent and cannot be mitigated or recovered,” the complaint states.
The harm done to the plaintiffs’ civil liberties during the past couple of months is also permanent, the complaint says.
In addition, the lawsuit maintains that the governor has violated the plaintiffs’ right to due process guaranteed by the state and federal constitutions.
“Governor Baker has not provided Plaintiffs with any process whatsoever — much less that which is constitutionally ‘due’ to them — whereby Plaintiffs would have the opportunity to defend against deprivation of their liberty and property interests,” the complaint states.
A lawyer for the plaintiffs, Michael DeGrandis, of the New Civil Liberties Alliance, of Washington D.C., said during a Zoom conference Monday, June 1 that he was not planning to seek immediate action by a judge through a temporary restraining order. He said he wants to give the governor a chance to walk back some of the claims of authority he has made – but that it’s important that the governor not try to claim the same authority again in the future.
“If COVID-19 rebounds, or when the next pandemic arises, Governor Baker’s executive overreach must not be repeated by him, nor by his successor,” the plaintiffs’ complaint states.
The Worcester Superior Court docket shows no substantive activity on the complaint since it was filed. The state is currently due to answer the complaint by September 29, although DeGrandis said during the Zoom conference Monday, June 1 that he may at some point file a motion for an injunction against the governor’s coronavirus orders, which would speed up the process.
