The Massachusetts Supreme Judicial Court on Thursday struck down a challenge to Gov. Charlie Baker’s emergency powers in a lawsuit similar to those filed in Connecticut, including one that will be heard in Connecticut Supreme Court.
The lawsuit was filed on behalf of several businesses and organizations, including hair salons, churches, gyms, a family entertainment center and two restaurants and was supported by the New Civil Liberties Alliance, a civil rights agency founded by legal scholar Philip Hamburger and based in Washington D.C.
The plaintiffs challenged the Constitutionality of Baker’s orders to close non-essential businesses under the state’s Civil Defense Act.
According to the NCLA, “Covid-19 is a serious matter of public health, but it is not a ‘civil defense’ emergency. The Civil Defense Act is a Cold War-era statute designed to protect the Commonwealth from foreign invasions, armed insurrections, and destruction associated with fires, floods, earthquakes, and similar cataclysms.”
The NCLA filed the complaint in the Massachusetts Superior Court and the case was transferred straight to the Supreme Judicial Court with the goal to “restore constitutional governance to the Commonwealth by returning the power to protect the health and welfare of Massachusetts residents to local boards of health and the legislature,” according to NCLA.
However, the court concluded “that the [Civil Defense Act] provides authority for the Governor’s March 10, 2020, declaration of a state of emergency in response to the COVID-19 pandemic and for the issuance of the subsequent emergency orders.”
The court determined that Massachusetts’ Civil Defense Act statute includes the term “other natural causes,” when determining whether or not to declare a state of emergency and that the phrase encompassed pandemics even though they are not specifically mentioned in the statute.
The case is similar to many brought to courts around the country over the course of 2020 in response to emergency declarations, business closures and mask mandates.
Lawsuits in Connecticut have challenged Gov. Ned Lamont’s emergency powers as well and thus far have met with similar results
A lawsuit brought filed by several Connecticut business owners, individuals and a state representative challenged Lamont’s emergency declaration under the Civil Preparedness Emergency statute which, like Massachusetts’ Civil Defense Act, accounts for a variety of war-time scenarios and natural disasters but never mentions a pandemic.
That lawsuit was dismissed by Superior Court Judge Barbara Bellis in October.
Another lawsuit brought by Sen. Rob Sampson, R-Wolcott, which claimed the governor violated the rights of business owners when they were forced to close, was also dismissed in Waterbury Superior Court.
The Connecticut Supreme Court is expected to hear arguments in case brought by a Milford pub owner challenging Lamont’s emergency powers and his ability to close bars during the pandemic.
Like the Massachusetts case, Casey et al. v. Gov. Ned Lamont is focused on whether the business shut down violated the owner’s constitutional rights and whether the governor could declare a state of emergency under the Civil Preparedness statute.
Another lawsuit challenging the requirement that school children wear masks in school might make its way to Connecticut’s Supreme Court.
The lawsuit, brought by the Connecticut Freedom Alliance and several parents, alleges the requirement by the Connecticut Education Department had no statutory authority to require face masks and that “wearing face coverings, masks, and face shields all day as mandated by the [Adapt, Advance, Achieve plan] is dangerous and damaging to the Children’s health, safety and emotional well-being.”
The suit did not appear to be playing out in the defendants’ favor as Superior Court Judge Thomas Moukawsher ruled against an injunction to stop the mask mandate for schools, and the state has filed a motion to dismiss the suit.
Well-known attorney Norm Pattis has taken over representing the families and CT Freedom Alliance and is now attempting to appeal that decision in Connecticut Supreme Court.
In a press release, NCLA derided the Supreme Judicial Court’s decision, saying it relied “heavily upon superseded U.S. Supreme Court precedent to justify its rejection of the plaintiffs’ First and Fourteenth Amendment claims, the decision is fundamentally flawed and ripe for review by the U.S. Supreme Court.”
“John Adams must be spinning in his tomb,” remarked NCLA Senior Litigation Counsel Michael P. DeGrandis.