By Matt Murphy Cape Cod Times Staff | August 31, 2020
BOSTON — With the Supreme Judicial Court expected to hear arguments in a little over a week over a lawsuit challenging Gov. Charlie Baker’s COVID-19 executive orders, Attorney General Maura Healey has filed a lengthy defense of the governor and the legality of his actions to control the coronavirus.
Baker has been sued by a group of business owners, religious leaders and others — including the headmaster of Trinity Christian Academy in Hyannis — over the numerous executive orders he has issued since declaring a public emergency March 10 in response to the COVID-19 pandemic. The orders have included everything from forced business and school closures to size limits on indoor and outdoor gatherings.
The plaintiffs contend that Baker overstepped his legal authority, but Healey argued in a briefing filed with the high court that Baker acted well within the scope of the Civil Defense Act to protect the public from the coronavirus.
“The CDA gives the Governor extensive authority to protect the Commonwealth during a civil defense emergency,” Healey wrote. “The Act defines ‘civil defense’ broadly, and responding to the current pandemic falls within its scope because COVID-19 is a ‘natural cause’ that threatens the public health and welfare of the Commonwealth’s residents.”
The response to the lawsuit was filed Friday with the court, which is expected to hear oral arguments on the lawsuit Sept. 11. The Massachusetts Fiscal Alliance is not a plaintiff in the case, but supports the litigation.
“After 171 days, this lawsuit has forced Governor Baker to finally put pen to paper and offer the people of Massachusetts a written, legal explanation as to why he believes he has the authority to violate their civil rights and bypass the state’s Public Health Act,” said Danielle Webb, a lawyer and chairwoman of Fiscal Alliance Foundation.
The lawsuit initially was filed in Worcester Superior Court by lawyers with the New Civil Liberties Alliance, a national nonprofit organized to fight what it describes as the “unconstitutional administrative state.”
The group, on behalf of local plaintiffs, contends the Civil Defense Act does not cover pandemics, and that the public health response should have come from local authorities.
Healey, however, called that interpretation of the act “misguided.”
“This pandemic, which has killed 822,000 globally, including more than 8,700 Massachusetts residents statewide, is precisely the kind of civil defense emergency that warrants a coordinated state level response by the Governor under the Act,” Healey wrote.
The latest report from the Department of Public Health documented 118,483 cases of the coronavirus in Massachusetts since March and 9,049 confirmed deaths from COVID-19, the disease caused by the virus.
The actions taken by the governor, Healey said, are consistent with what is known about COVID-19, including that the virus is highly transmissible, spread by asymptomatic people and can be prevented by social distancing, frequent sanitizing and mask wearing.
The attorney general said emergency measures taken by governors in times of public crises are typically afforded a “broad deference” by the courts, but even without that deference Healey said Baker’s orders “readily survive scrutiny” under a traditional constitutional analysis.
Healey also argued that the governor’s orders respected the separation of powers between the executive and legislative branches, and have been repeatedly affirmed by the Legislature through its passage of new laws predicated on the public health emergency.
“Since the Governor’s emergency declaration, the Legislature has enacted a host of laws that approvingly acknowledge the state of emergency and are even contingent on the existence of a declared state of emergency,” she wrote.
Futhermore, she said nothing is preventing the Legislature from acting to reverse any of the governor’s orders, from the forced closure of certain businesses to social distancing guidelines and travel restrictions.
Baker joined the plaintiffs in July in requesting that the case be heard by the Supreme Judicial Court, and Justice Barbara Lenk agreed to have to case transferred.
If Baker were to lose the case, it could unravel many of the safety measures he has put in place to try to control the spread of the virus at a time when many elementary, high school and college students are preparing to return to classrooms, at least part time.
The plaintiffs include business owners in Hubbardston, Lexington, Burlington and Marlboro; the pastors of churches in Westfield and Medford; and Ben Haskell, headmaster of Trinity Christian Academy in Hyannis, who has said his role in the case is in no way connected to the school.
“People can debate the merits and shortcomings of the policies put forth by Governor Baker in his executive orders all day, but their legal authority should never be in question,” said Paul Craney, a spokesman for the Massachusetts Fiscal Alliance.
“The lawsuit does not take a position on the orders. Rather, it focuses entirely on the legal underpinnings behind them. We believe laws, especially any laws that for whatever reason may abridge our civil rights, must originate from the democratically elected legislature. In bypassing the laws prescribed by the legislature, these executive orders set a bad precedent for future emergency situations,” Craney said.
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