Gov. Wants Mass. Top Court To Weigh In On COVID-19 Orders

By Chris Villani
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Law360 (July 2, 2020, 7:25 PM EDT) -- Massachusetts Gov. Charlie Baker and a group of business owners suing him for closing them down during the COVID-19 pandemic have asked the state's top court to weigh in on whether the governor overstepped his authority during the crisis.

In a joint petition to the Massachusetts Supreme Judicial Court on Thursday, Baker and the plaintiffs agreed the case should be taken out of state court and handed to the justices soon, though the governor said he still takes issue with the claims by the New Civil Liberties Alliance.

"The parties agree that the amended complaint presents questions of law that can be efficiently decided by the Supreme Judicial Court and that the full court's resolution of those questions will provide clarity regarding the governor's authority to act in response to the COVID-19 pandemic," according to the petition.

The suit was brought by a pair of hair salons, a tanning salon and boxing gym, two restaurants, two houses of worship, the headmaster of a religious school and an entertainment center and conference center.

According to the complaint filed in June in Worcester County Superior Court, Baker's dozens of orders related to the health crisis are invalid because they relied on the Civil Defense Act, a law aimed at foreign invasions or natural disasters.

The result is an unlawful end-around the legislature, the suit claims, adding that 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.

The state is represented in the case by the Massachusetts Attorney General's Office.

"This joint motion is an encouraging development," said Michael P. DeGrandis, NCLA's Senior Litigation Counsel, in a statement. "By finding common ground with the Attorney General's office regarding the nature of our dispute, we were able to come to an agreement with Governor Baker that our lawsuit presents fundamental questions of constitutional law and that the Supreme Judicial Court should hear the case as soon as possible."

DeGrandis added, "when it does, we are confident in our chances for success."

A Baker representative did not immediately respond to a comment request Thursday.

The petition stressed the need to get the issue before the SJC quickly and proposed an aggressive briefing schedule that would have oral arguments scheduled for September, should the top court agree to hear the case. The parties pointed out that this is not the only legal challenge over whether Baker acted lawfully during the pandemic.

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, while a chain of gyms recently told a federal judge they were facing bankruptcy by being forced to stay closed.

"Given the pendency of at least six cases in state and federal court challenging the Governor's authority to issue the emergency orders under the Civil Defense Act, a ruling by the Supreme Judicial Court will provide clarity and certainty on the validity of Governor Baker's emergency orders," the petition says.

A definitive SJC ruling would prevent judges from issuing conflicting decisions and causing confusion and disruption, the parties noted.

"Given the unprecedented nature of the current pandemic, a decision by this court will also serve the public interest in clarity and consistency regarding the validity of the public health measures implemented through the Governor's emergency orders," the document says.

COVID-19 case counts suggest the virus is on the wane in Massachusetts even as it surges elsewhere across the country. The petition came the same day as Baker's announcement that the state will move to the third phase of its four phase reopening plan, under which more businesses, including gyms, museums, and movie theaters, will be able to open.

But the plaintiffs, who compared Baker to the tyrannical King George III in their complaint, say the suit is about checking the power of the person in the corner office in case COVID-19 bounces back 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, case number 2085CV00570, in Worcester County Superior Court.

--Editing by Amy Rowe.

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

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