Mass. Gov. Like King George III In Virus Response, Suit Claims

By Chris Villani
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Law360 (June 1, 2020, 7:50 PM EDT) -- Massachusetts Gov. Charlie Baker overstepped his authority when he shut down businesses across the state during the COVID-19 pandemic, according to a suit filed Monday that compares him to King George III.

Baker made his own laws when he declared a state of emergency back in March, according to the 47-page complaint filed in Worcester County Superior Court. Using the Civil Defense Act, which the suit calls "a Cold War-era statute" aimed at foreign invasions or natural disasters, Baker bypassed the Legislature and compounded the problem by ignoring the Public Health Act, which is more properly tailored to a pandemic, the complaint states.

"What started as a health crisis is now an economic crisis and a social crisis and, for churchgoing people, a spiritual crisis," Michael DeGrandis of New Civil Liberties Alliance said in an interview with Law360 Monday. "The problem has been exacerbated because you can't stuff a pandemic into the Civil Defense Act."

"This isn't the type of thing where you can just rule by edict from Boston," DeGrandis added.

The sweeping action taken by the governor includes more than 30 orders that have waived or modified laws passed by the state Legislature, the suit alleges.

"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 suit stated, citing a quote by the author of the state's constitution, John Adams. "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."

Just as the Declaration of Independence listed numerous grievances with the king, the complaint ticks off a number of allegedly illegal actions taken by the governor.

"He has arbitrarily declared which businesses are 'essential' and he has closed those that he has deemed to fall outside of that category," the complaint stated. "He has prohibited gatherings of more than ten people without regard to the location or health risk posed by those gatherings."

Other actions cited in the suit include the closure of beaches, mandating face masks and closing schools.

"These are not the lawful powers of a governor," the suit argued. "Even where Governor Baker has deigned to permit some activities to resume, such as the reopening of churches and some businesses, or the reopening of beaches, there remain restrictions including limitations on capacity and restrictions allowing only 'passive recreational activities.'"

The state recently unveiled a four-phase plan to reopen, allowing various businesses to start up again with restrictions in place in many cases. DeGrandis said the easing of the shutdown is welcome, but the suit is about checking Baker's power, or whoever fills his shoes next, if COVID-19 rebounds or another pandemic hits in the future.

"It's an unlawful use of power and we can't have that again," DeGrandis said.

The suit was filed on behalf of a number of Massachusetts residents who own various businesses, including hair salons, restaurants, tanning salons, a gym and a family entertainment center, as well as the pastor of a Somerville, Massachusetts, church and the headmaster at a Cape Cod private school.

"This really affects so many people across Massachusetts with this 'one size fits all' state of emergency," DeGrandis said. "When you step outside your constitutional lane, as the governor has, even though I'm sure he has the best of intention, you can't help but create other problems."

The suit seeks injunctive and declaratory relief but does not include a motion for a temporary restraining order, as was the case in suits brought by recreational marijuana shops and gun stores seeking to reopen amid the crisis.

DeGrandis did not rule out a bid for injunctive relief but said he wanted to give the governor and the Legislature "a few days" to address the allegations in the complaint.

A representative for the governor did not immediately return a request for comment Monday afternoon.

Had the governor invoked the Public Health Act, the suit says the power to act would have rested with the Legislature, the Department of Public Health and local boards of health that DeGrandis said could respond more effectively to a situation that is different in one part of the state from another.

He said the Legislature might be willing to stay in the background and let the governor put his own "political neck" on the line, but added "if you really want to keep Massachusetts safe and healthy and look out for the welfare of the people, then the power has to be with the Legislature."

The plaintiffs are represented by Michael P. DeGrandis of New Civil Liberties Alliance and Danielle Huntley Webb of Huntley PC.

Counsel information for the governor was not immediately available.

The case is Desrosiers, Dawn et al. vs. Baker Jr., Charles D, case number 2085CV00570, in Worcester County Superior Court.

--Editing by Janice Carter Brown.

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