By Chris Villani

Law360 (September 11, 2020, 12:39 PM EDT) -- Massachusetts' top court on Friday expressed skepticism that local boards of health or the Legislature could have done a better job combating the COVID-19 pandemic than Gov. Charlie Baker, casting doubt on a challenge to his sweeping emergency orders.

During oral arguments in the case, the Supreme Judicial Court pushed back against an argument by the New Civil Liberties Alliance that Baker illegally shut down businesses and imposed severe restrictions under a civil defense law that was never intended to be used in a pandemic.

"I understand that this pandemic and the restrictions in place have taken an extreme toll on the people of Massachusetts. Some of them have borne the burden disproportionately," said Associate Justice Elspeth B. Cypher. "I understand all that, but don't you have to admit Governor Baker has done a pretty darn good job here?"

Arguing on behalf of several Bay State businesses affected by the closures, Michael DeGrandis of NCLA said Baker's performance is not relevant to whether he had the authority to enact his broad powers under the Civil Defense Act, as opposed to the Public Health Act.

"The question presented here can be succinctly restated as a simple proposition: May Governor Baker ignore a health statute that expressly provides for the containment of a pandemic and instead exercise the police power as he sees fit pursuant to a civil defense statute?" DeGrandis told the court. "The answer to that question has to be 'no.'"

Local boards of health are the ones on the ground, DeGrandis argued, and "they've been relegated to mere health police by the governor's orders."

Justice Cypher asked whether local health boards were well-equipped to "control a pandemic that spreads like this," prompting DeGrandis to respond that he was not a health expert and therefore not in a position to decide that question.

Associate Justice Scott L. Kafker noted that there are 294 towns and 57 cities in Massachusetts. Under the NCLA's argument, "all these different actors" would be dealing with the public health crisis, Justice Kafker said.

The NCLA has argued the Civil Defense Act, passed during the Cold War, is aimed at combating foreign invasions and natural disasters, not pandemics. But Associate Justice David A. Lowy noted that the law lists as one of its purposes "protecting the public health" and expressly covers "other natural causes."

"Why wouldn't that leave us with the reasonable statutory construction that the governor's acts are within the statute?" the justice asked.

"If other natural causes means every natural cause of any sort, there is no limiting principle,"" DeGrandis replied. "When can't a governor declare a civil defense emergency?"

While there have been some industry-specific legal challenges, the NCLA's suit is the most overarching opposition to Baker's emergency orders, which closed nonessential businesses back in March as the number of coronavirus cases peaked. Many businesses have since been reopened in a phased approach.

While NCLA argued the governor has usurped legislative powers, multiple justices said the Legislature seems to be in lockstep with Baker's actions either through its own inaction or by approving funding related to some of the executive orders.

"The governor has taken control and turned the government upside down," DeGrandis argued. "At this point, the Legislature is left is to approve or disapprove of the governor's policy choices. That's not how it's supposed to work, that's not a republican form of government."

The arguments came a day after U.S. District Judge Mark L. Wolf declined to block Massachusetts' temporary ban on most eviction proceedings. But, as Judge Wolf did on Thursday, the SJC wondered Friday how long the emergency orders could reasonably stay in place.

"If we don't get a vaccine for two years, how do we analyze that legally?" asked Justice Kafker.

Arguing for the governor, Assistant Attorney General Douglas Martland said it depends on the circumstances and noted the statute expressly mentions war which, by its nature, is often a long-lasting conflict.

"The Legislature did not intend duration and the potential duration of a pandemic or an event to determine whether or not there should be a civil defense emergency," Martland said.

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.

Justice Cypher pointed out that Massachusetts is a commonwealth and suggested that residents have "all kinds of restrictions we endure, gladly, for the common good."

"Traffic laws, you have to wear clothes, we don't have total freedom so that we can be protected from one another," she said. "Doesn't this pandemic provide a really good example for why that is, some people have to put up with some restrictions for the greater good?"

DeGrandis said his clients have been doing their part and following the governor's orders and will continue to do so unless those orders are invalidated.

"This is an issue of process and what is the character of the Massachusetts government," he said before quoting the author of the state's constitution, John Adams. "Is it a government of laws, or a government of men?"

Following the hearing, DeGrandis said in a statement that the justices had "asked probing questions of both sides regarding the fundamental nature of the Massachusetts government." 

He added, "I am encouraged by their obvious appreciation for the gravity of the issues presented, and I'm optimistic that they will restore the separation of powers and put Massachusetts on a path toward renewed health and vitality."

The businesses 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 Dawn Desrosiers et al. v. Charles D. Baker Jr., case number SJC-12983, in the Supreme Judicial Court for the Commonwealth of Massachusetts.

--Editing by Katherine Rautenberg.

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