Mass. Justices Take Up Challenge To Virus Shutdown Orders

By Chris Villani
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Law360 (July 14, 2020, 3:46 PM EDT) -- The Massachusetts Supreme Judicial Court has agreed to hear a challenge to Gov. Charlie Baker's numerous orders closing businesses during the COVID-19 pandemic, citing the need to tackle issues that have spawned multiple cases at the state and federal level.

In an order entered July 10, Justice Barbara A. Lenk transferred the case to the full seven-justice panel for oral arguments in September. In doing so, the court granted a petition filed by both sides earlier this month that argued the top court was the proper venue to sort out the scope of Baker's power.

"Due to the nature of the questions raised, and the multiple pending cases in state and federal courts related to these issues of state-wide significance, the parties' motion to transfer is the most expeditious way to resolve the questions presented in the petitioner's complaint," the transfer order states.

The suit is being led by the New Civil Liberties Alliance on behalf of two hair salons, a tanning salon and boxing gym, two restaurants, two houses of worship, the headmaster of a religious school and an entertainment and conference center.

"All parties to this lawsuit — indeed, all Massachusetts residents — will benefit from the Supreme Judicial Court's willingness to expedite review of this matter," Michael P. DeGrandis, NCLA's senior litigation counsel, told Law360 on Tuesday.

"We need clarity regarding the limits of executive power and the legislature's role in protecting public health and safety," DeGrandis said. "We will soon have that clarity."

A representative for the governor did not immediately respond to a request for comment.

The suit was first filed in June in Worcester County Superior Court. The complaint says Baker's dozens of orders closing businesses and imposing restrictions during the crisis should be invalidated because the governor relied on the Civil Defense Act when he issued them.

That law is more aptly tailored to foreign invasions or natural disasters, and resulted in an unlawful end-around the legislature, denying the businesses any sort of due process before they were shut down, the complaint alleges.

The suit says the Public Health Act would have been the more appropriate law to use in response to the virus and would have put more decisions in the hands of lawmakers.

Despite taking issue with the claims made by the NCLA, Baker agreed in the joint petition that the SJC is the best forum for the dispute in order to settle an issue that has led to numerous legal challenges.

Recreational marijuana shops unsuccessfully sued to reopen after their medicinal counterparts were allowed to stay open during the pandemic. Gun shops and ranges were able to get their doors open via a federal lawsuit. And a chain of gyms recently told a federal judge it was facing bankruptcy by being forced to stay closed during the early parts of Massachusetts' reopening plan.

While most state businesses and houses of worship are now able to open, the NCLA says its suit is focused on checking the power of the person in the corner office in case there is a second wave of COVID-19 infections or another pandemic hits in the future.

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

Baker is represented by Amy Spector, Douglas S. Martland and Julia E. Kobick of the Massachusetts Attorney General's Office.

The case is Desrosiers, Dawn et al. vs. Baker Jr., Charles D. Docket information for the Supreme Judicial Court was not immediately available.

--Editing by Jill Coffey.

For a reprint of this article, please contact reprints@law360.com.

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