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Desrosiers v. Baker

CASE: Desrosiers v. Baker

STATUS: Closed

NCLA ROLE: Counsel


ORIGINAL COURT: Massachusetts Superior Court

DECIDING COURT: U.S. Supreme Court

OPENED: June 1, 2020

AGENCIES: Massachusetts Governor


Due Process Violations

The due process of law guarantees a right to be held to account only through the processes of an impartial court—something administrative tribunals violate every day.

Scope of Authority / Nondelegation

The structure of the Constitution allows only Congress to legislate, only the Executive to enforce laws, and only the Judiciary to decide cases. But the Administrative State evades the Constitution’s avenues of governance when executive agencies issue regulations without statutory authorization from Congress.

Did we achieve our litigation objective? No. Governor Baker’s Covid-19 orders remained in place despite their violating due process rights and improper seizure arrogating legislative authority.

Court Outcome: The Massachusetts Supreme Judicial Court upheld Governor Baker’s COVID-19 orders. The U.S. Supreme Court chose not to review this case.

Larger Impact: During the pandemic, governors across the country signed executive orders that unconstitutionally violated Americans’ rights, but courts were reluctant to overrule them in times of crisis. Unfortunately, that gives governors an opening to violate Americans’ rights during future crises, and perhaps, an incentive to declare emergencies as a means of expanding their power.

Summary: In June 2020, NCLA filed a complaint in Massachusetts Superior Court on behalf of small business owners, entrepreneurs, church pastors, and the headmaster of a private school against Governor Baker’s unlawful Civil Defense Act State of Emergency. The lawsuit aimed 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, as required by law and the Massachusetts Constitution. In July 2020, Justice Barbara A. Lenk transferred the case to Massachusetts’s highest court, the Supreme Judicial Court (SJC). The Supreme Judicial Court heard oral arguments on September 11, 2020.

COVID-19 is a serious matter of public health, but it was 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. It was never before invoked in a health emergency. On the other hand, the legislature passed the Public Health Act explicitly to empower health authorities to suppress and prevent transmission of infectious diseases. Under the Public Health Act, principal responsibility for disease control lies with local boards of health, not with the Governor from his perch on Beacon Hill.

What started out as a disease crisis was aggravated by new threats to the economic, social, educational, spiritual, and constitutional health of the Commonwealth. Governor Baker’s plan to reopen the economy did little to ease the burdens of those crises, and in many instances, his orders made matters worse. NCLA asked the court to declare that the Civil Defense Act does not confer any authority upon Governor Baker during a pandemic and to declare his orders unenforceable.

On December 10, 2020, the Massachusetts Supreme Judicial Court rendered its decision upholding Governor Baker’s pandemic orders as consistent with the CDA. The order delivered a blow to the plaintiffs who include mom-and-pop businesses, two church pastors; the head of a religious academy, and others. The constitutional rights to due process of law and to be governed only by laws passed by the state legislature were denied by the Court, causing incalculable harm to every Commonwealth resident.

NCLA pointed out that the SJC never explained why, ten months after the Civil Defense State of Emergency declaration, executive-made law was consistent with the Massachusetts Constitution or why it was even the swiftest, most desired outcome during a second pandemic wave. SJC didn’t properly employ established tools of statutory interpretation, finding instead that the CDA covered COVID-19 because of its severity rather than the nature of the threat. Relying heavily upon superseded U.S. Supreme Court precedent to justify its rejection of the plaintiffs’ First and Fourteenth Amendment claims, the decision was fundamentally flawed and ripe for review by the U.S. Supreme Court.

On May 10, 2021, NCLA filed a petition for a writ of certiorari with the U.S. Supreme Court, asking the Justices to review two errors in the Massachusetts Supreme Judicial Court’s December 2020 ruling. First, NCLA argued that the court used an exceedingly lax standard of review when scrutinizing deprivations of the plaintiffs’ right to peaceably assemble, despite that the Governor’s Orders were discriminatory on their face. Second, NCLA argued that the SJC applied virtually no scrutiny regarding deprivations of the plaintiffs’ substantive due process rights, concluding that because substantive due process “is not a fundamental right,” the deprivations need only have a rational relationship to public health. The Supreme Court should have taken up this case to remind state courts that a health crisis does not empower governors to disregard the First and Fourteenth Amendments.

On June 10, 2021, Governor Baker filed a Waiver of Response, meaning that he would not respond to NCLA’s petition unless the Supreme Court ordered him to respond.  The next day, two amici filed briefs in support of NCLA’s petition: the Liberty Justice Center (Daniel R. Suhr, Counsel of Record) and civil rights attorney Ilya I. Feoktistov (Paul D. Kamenar, Counsel of Record).  NCLA and its clients appreciated amici’s interest in our case and in restoring the civil liberties of all Massachusetts residents.

On October 4, 2021, the U.S. Supreme Court declined to review the merits of an appeal in the case, without further comment.

Dawn Desrosiers, Plaintiff


Brief of Ilya Feoktistov as Amicus Curiae in Support of the Petitioners

June 11, 2021 | Read More

Brief of the Liberty Justice Center as Amicus Curiae in Support of Petitioners

June 11, 2021 | Read More

Respondents Waiver of Response in the U.S. Supreme Court

June 10, 2021 | Read More

Petition for a Writ of Certiorari in the U.S. Supreme Court

May 10, 2021 | Read More

Decision of the Massachusetts Supreme Judicial Court

December 10, 2020 | Read More


NCLA Petitions Supreme Court to Hear Case on Gov. Baker’s Pandemic Orders Barring Free Assembly

May 10, 2021 | Read More

Mass. High Court Ruling Disregards Civil Liberties, Gives Governor Virtual Free Pass to Violate Them During a Civil Defense State of Emergency

December 10, 2020 | Read More

NCLA’s Latest Case Video Explains Lawsuit Against Governor Baker’s Civil Defense Emergency Orders

December 3, 2020

NCLA Alerts Mass. High Court to US Supreme Court Covid-19 Ruling Blocking Similar NY Exec. Order

December 1, 2020

NCLA Clears Way for Mass. Small-Biz Owners to Receive COVID-19 Relief Grants

November 3, 2020 | Read More


SJC was right on Baker’s emergency orders

February 7, 2023

How Massachusetts Annihilated Private Property Rights In The Name Of COVID Restrictions

February 7, 2023

Biden outlines sweeping vaccine requirements; Charlie Baker says no mandate in Massachusetts

February 7, 2023

Mass. Governor to End Pandemic Restrictions Early

February 7, 2023

Interview with NCLA Senior Litigation Counsel Mike DeGrandis

February 7, 2023



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