By Chris Villani

Law360 (August 4, 2020, 2:32 PM EDT) -- Massachusetts Republican Gov. Charlie Baker applied the wrong law and illegally picked "winners and losers" when he shut down certain businesses during the COVID-19 pandemic, the state's top court was told Tuesday by a group seeking to invalidate the emergency orders.

The New Civil Liberties Alliance — suing 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 — told the Supreme Judicial Court that the crisis "does not empower the governor to make law or dispense with law as he sees fit."

"That COVID-19 is a contagious and sometimes deadly virus is beyond dispute," the opening brief to the SJC said. "Fear of that virus, however, cannot justify suspending the constitutional order of Massachusetts government."

Baker's decision to declare an emergency in March under the New Civil Defense Act has allowed the health crisis to spawn social, political, economic and spiritual crises, the brief said. The Cold War-era law is designed to defend the state against foreign invasions, armed insurrections and natural disasters, not pandemics, the NCLA said.

The state Legislature already had a law in place for a pandemic, according to the brief: the Public Health Act.

That law "delegates responsibilities for disease control to state and local health care authorities, not the governor," the NCLA wrote. "Indeed, the COVID-19 orders frustrate the Legislature's intent to require coordination between localities and the Department of Public Health. Nothing in the Civil Defense Act suggests that it supersedes the Public Health Act."

The suit was first filed in June in Worcester County Superior Court before making a beeline for the state's top appellate panel. Both Baker and the NCLA suggested the SJC tackle the issue, and a single justice transferred the case to the full court with an order in July. Oral arguments are slated for September.

Although Massachusetts has reopened many businesses as COVID-19 cases and deaths dropped precipitously from April highs, the brief warns that "if COVID-19 rebounds, or when the next pandemic arises, Gov. Baker's executive overreach must not be repeated by him, nor by his successor."

The plaintiffs say the governor relies on a general phase in the Civil Defense Act, "other natural causes." But a pandemic is different from the other, more commonplace events spelled out prior to that phrase, the brief says.

"Fires, floods and earthquakes may threaten health, but these crises are characterized by catastrophic destruction to infrastructure and property. They put a specific population's access to water, food and shelter at grave risk," the brief states. "Pandemics, on the other hand, are crises that cause misery and sometimes death, but pandemics do not impact the commonwealth's infrastructure, nor are they limited to times, places or durations."

NCLA's Mike DeGrandis told Law360 on Tuesday, "The 1950s called, and they want their governor's war powers back." 

"Gov. Baker cannot use the sweeping power of the Civil Defense Act as if COVID-19 were a Soviet invasion," DeGrandis said. "The laws that he has arbitrarily applied to some, but not to all, have caused irreparable damage to civil liberties, and his Civil Defense orders have done little to keep Massachusetts healthy."

The attorney added that if local healthcare professionals are allowed to do their jobs under the Public Health Act, "the burdens on civil liberties can be minimized and Massachusetts' health, welfare and Constitution will be restored."

Baker's representatives did not respond to requests for comment Tuesday.

Previous court challenges to Baker's pandemic power have had mixed success.

At the start of the crisis, 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.

A group of landlords have also launched parallel state and federal court challenges to a statewide moratorium on evictions they say goes too far in eroding essential property rights.

The group is 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, case number SJC-12983, in the Supreme Judicial Court for the Commonwealth of Massachusetts.

--Editing by Stephen Berg.

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