Desrosiers v. Baker

NCLA Senior Litigation Counsel Michael DeGrandis stands with Plaintiff Dawn Desrosiers in front of the Massachusetts State House

CASE SUMMARY

In June, 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 aims 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, Justice Barbara A. Lenk transferred the case to Massachusetts’s highest court, the Supreme Judicial Court. The Supreme Judicial Court heard oral arguments on September 11, 2020, and a decision is expected in the upcoming weeks​.

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. It has never before been 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 has been aggravated by new threats to the economic, social, educational, spiritual, and constitutional health of the Commonwealth. Governor Baker’s plan to reopen the economy does little to ease the burdens of these crises, and in many instances, his orders have made matters worse. We are asking 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. If we are successful, local boards of health will once again establish balanced strategies befitting their communities to reinvigorate their social, economic, educational, and spiritual profiles, while still preventing the spread of COVID-19. The legislature could then take up any issue requiring broader applicability to the Commonwealth, thereby protecting the health and welfare of all Massachusetts residents.

Photo Credit: Lucyus Fevrier

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CASE STATUS: Awaiting Supreme Judicial Court Decision

CASE START DATE: June 1, 2020

DECIDING COURT: The Massachusetts Supreme Judicial Court

ORIGINAL COURT: The Massachusetts Superior Court

CASE DOCUMENTS

October 6, 2020 | Supplemental Notice of Pertinent and Significant Authorities
September 11, 2020 | Oral Arguments

September 2, 2020 | Reply Brief of Petitioners in the Supreme Judicial Court for the Commonwealth of Massachusetts
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August 28, 2020 | Brief of the Respondent in the Supreme Judicial Court for the Commonwealth of Massachusetts
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August 3, 2020 | Brief of Plaintiff-Petitioners in the Supreme Judicial Court for the Commonwealth of Massachusetts
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July 10, 2020 | Order of Reservation and Report
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July 2, 2020 | Joint Petition to Transfer Case to Supreme Judicial Court for Suffolk County and to Reserve and Report Two Legal Issues to the Supreme Judicial Court for the Commonwealth
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June 22, 2020 | Motion for Leave to File in Excess of Page Limit
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June 18, 2020 | Amended Complaint for Declaratory and Injunctive Relief
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June 1, 2020 | Complaint for Declaratory and Injunctive Relief
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PRESS RELEASES

October 7, 2020 | Fate of Gov. Baker’s COVID-19 Orders Could Be Influenced by Michigan, Pennsylvania Court Decisions

Washington, DC (October 7, 2020) – A recent Michigan Supreme Court decision striking down months of COVID-19 executive orders by Governor Gretchen Whitmer has prompted the New Civil Liberties Alliance to file a Supplemental Notice of Pertinent and Significant Authorities in the Massachusetts Supreme Judicial Court in the matter of Desrosiers v. Baker.

Massachusetts’s highest court heard oral arguments on September 11, 2020, at which time the Justices inquired regarding other governors’ declarations of states of emergency and judicial interpretations of their COVID-19 orders. The Notice alerts the Justices to two similar cases in other states where governors’ pandemic orders were challenged—and nullified by the courts. NCLA, a nonpartisan, nonprofit civil rights group, believes that these judicial decisions could persuade the Massachusetts SJC in deciding the Desrosiers v. Baker matter.

Midwest Institute of Health, PLLC v. Whitmer was pending in the Michigan Supreme Court and County of Butler v. Wolf was pending in the Western District of Pennsylvania at the time of oral argument, but they have now been decided against both governors.

In Midwest Institute of Health, the Michigan Supreme Court held that Governor Whitmer’s COVID-19 orders violated the separation of powers and nondelegation clauses of the Michigan Constitution. The Supreme Court cited a Massachusetts Supreme Judicial Court decision as standing for the proposition that an emergency does “not abrogate the Constitution.” Declaring Governor Whitmer’s orders unconstitutional, the Justices concluded that a governor may not “possess[] free rein to exercise a substantial part of our state and local legislative authority—including police powers—for an indefinite period of time.”

In County of Butler v. Wolf, the district court held that Pennsylvania Governor Wolf’s COVID-19 orders violated First Amendment rights to assembly and speech and Fourteenth Amendment rights to substantive due process and equal protection. The district court believed Governor Wolf’s orders were well-intentioned, but good intentions are not a constitutional standard. “Indeed, the greatest threats to our system of constitutional liberties may arise when the ends are laudable, and the intent is good—especially in a time of emergency.” Declaring Governor Wolf’s orders unconstitutional, the district court concluded that “[t]he Constitution cannot accept the concept of a ‘new normal’ where the basic liberties of the people can be subordinated to open-ended emergency mitigation measures.”

The petitioners in Desrosiers v. Baker, which include business owners, church pastors, and the headmaster of a private school, are asking the Massachusetts SJC to consider: (1) whether the 1950’s-era Civil Defense Act provides authority for Governor Baker to declare a state of emergency and if his issuance of the emergency orders violates the separation of powers; and (2) whether the emergency orders violate the plaintiffs’ rights to due process and free assembly. These issues are akin to the ones Governors Whitmer and Wolf lost recently.

NCLA released the following statement:  

“With no end in sight to the Civil Defense State of Emergency nor indication that Governor Baker will be loosening his grip on the legislature’s police power, I hope the Supreme Judicial Court will take notice of an emerging trend across the country. More and more courts are defending state and federal constitutions and restoring civil liberties lost under the guise of ‘temporary’ emergency gubernatorial action. This is a heartening trend that the SJC could—and should—further in Massachusetts.”

– Michael P. DeGrandis, NCLA Senior Litigation Counsel

ABOUT NCLA 

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

Download the full document

September 3, 2020 | NCLA Brief to Mass. Supreme Judicial Court Rebuts Governor Baker’s Defenses

Washington, DC (September 3, 2020) – The New Civil Liberties Alliance, a nonpartisan, nonprofit civil rights group, filed a reply brief shortly before midnight refuting Governor Baker’s defense of his declaration of a Civil Defense Act State of Emergency to address the COVID-19 health crisis. NCLA asked the Massachusetts Supreme Judicial Court to declare Governor Baker’s COVID-19 orders unconstitutional. The plaintiffs, consisting of business owners, businesses, schools, and churches across the state, contend that Gov. Baker cannot define the limits of his own authority or use a pandemic to set himself up as a single-branch lawmaker. A chief executive also may not pick winners and losers by dispensing with the law to benefit certain groups and disfavor others. Further, Governor Baker’s interpretation of the Civil Defense Act (CDA) disregards the Public Health Act.

The Massachusetts legislature adopted the Public Health Act over a century ago to empower health authorities to control and prevent transmission of infectious diseases dangerous to public health. It never intended for the CDA to supersede it.  The CDA is a 1950’s-era statute designed to protect the Commonwealth from foreign invasions, armed insurrections, and civil unrest and destruction associated with natural disasters such as fires and earthquakes. In his response brief filed last week, Governor Baker asserts that the phrase “other natural causes” under the CDA effectively means “all natural causes”—not so.

NCLA points out that neither the Massachusetts Constitution nor the CDA authorizes the governor to enact, amend or dispense with the law under any circumstance. His authority is limited to implementing the details of legislative policy. But many of the governor’s COVID-19 orders cross the line—instead of effectuating legislative policy, he is enacting his own laws.

Governor Baker offers no authority to support his assertion that a pandemic is a Civil Defense Emergency, and his assertion that he may define the limits of his own authority due to the pandemic is counter constitutional. The Massachusetts Supreme Judicial Court cannot defer to the Governor’s definition of the scope of his own authority—which he claims to be “any and all authority over persons and property[.]”

NCLA released the following statement: 

“Governor Baker’s defenses offer the Justices absolutely no limiting principle as to the scope of his power. If every natural disaster and every man-made disaster justify a Civil Defense Act state of emergency, when can’tthe governor rule Massachusetts by decree? It’s time to restore the legislature’s lawmaking authority and return democracy to the Commonwealth.”

— Michael P. DeGrandis, Senior Litigation Counsel, NCLA 

ABOUT NCLA  

NCLA is a nonpartisan, nonprofit civil rights organization founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

Download the full document

August 4, 2020 | NCLA Brief Tells Mass. Supreme Judicial Court that Gov. Baker’s Covid-19 Orders Violate Constitution

Washington, DC (August 4, 2020) – The uncertainty of indefinite shutdowns and shifting reopening phases are causing hardship to people across Massachusetts. The New Civil Liberties Alliance, a nonpartisan, nonprofit civil rights group, has filed an opening brief on behalf of plaintiff-petitioners in Dawn Desrosiers, et al. v. Governor Charles D. Baker. The plaintiff-petitioners which include business owners, church pastors, and the headmaster of a private school, have bypassed state trial court to ask the state’s highest court to decide directly whether the governor’s March 10, 2020 Civil Defense State of Emergency declaration and the ensuing emergency orders responding to the coronavirus pandemic are lawful exercises of gubernatorial authority.

On July 10, 2020, Justice Barbara A. Lenk of the Supreme Judicial Court entered an order to “reserve and report the matter to the full court for decision.” Justice Lenk agreed with the parties that promptly obtaining a decision by Massachusetts’s highest court is in the public interest. Such an approach will provide clarity regarding the validity of Governor Baker’s decisions more quickly. A major issue is his reliance on the Civil Defense Act, rather than the Public Health Act, to impose his unilateral orders to close and restrict access to businesses, churches, schools, and limit private and some public gatherings.

The Supreme Judicial Court will consider two questions: (1) whether the Civil Defense Act provides authority for Governor Baker to declare a state of emergency and if his issuance of the emergency orders violates the separation of powers; and (2) whether the emergency orders violate the plaintiffs’ constitutional rights to due process and free assembly.

NCLA argues that Governor Baker has arbitrarily declared which businesses, organizations, and activities are “essential,” and banned others by categorizing them into his unilaterally defined reopening phases. The governor has also indefinitely closed some businesses, making their operations contingent upon a treatment or vaccine for the coronavirus—events over which those affected have no control. Even while he has allowed certain businesses to reopen, he continues to exercise the authority he usurped from the legislature to pursue his own policies on conditions and restrictions to business operations.

The plaintiffs have argued that the governor’s orders are invalid because the COVID-19 pandemic is not a “civil defense emergency” and does not afford the governor sweeping emergency powers to mitigate the spread of infectious diseases. The Civil Defense Act is a 1950’s-era statute designed to protect the Commonwealth from foreign invasions, armed insurrections, and civil unrest and destruction associated with natural disasters such as fire and earthquakes.

The Massachusetts legislature, adopted the Public Health Act to empower health authorities to control and prevent transmission of infectious diseases dangerous to public health. It never intended for the Civil Defense Act to supersede it. Under the Public Health Act, principal responsibility for disease control lies with local boards of health and healthcare officials. The governor does not have the lawmaking prerogative to legislate the police power in either the Public Health Act or the Civil Defense Act.

Furthermore, even if the CDA allows Gov. Baker to suspend some laws, the Massachusetts Declaration of Rights does not allow him to dispenseany laws, which is what happens when he suspends the application of laws to some citizens but not others or comes up with new rules that only apply to certain groups that he has identified. Nor does the constitution permit him to deny people’s civil liberties without a hearing and adequate due process.

NCLA released the following statements: 

“The plaintiffs are conscientious citizens and good neighbors. They have been doing their part to stop the spread of COVID-19, and they will continue to do so. But they refuse to sit idly by and watch a health crisis worsen into a socio-economic crisis caused by Governor Baker’s unconstitutional law-by-decree regime. A return to constitutional order will restore health to our communities—physical, social, and economic—and ensure that the concerns for the welfare of all will be addressed by the legislature, as the Constitution intended.”

— Michael P. DeGrandis, Senior Litigation Counsel, NCLA 

“No governor is above the law. They are instead required to faithfully carry out the law as written and stay within the confines of their constitutional authority. The coronavirus simply cannot become a vehicle by which to weaken and undermine our Republican form of government. Protecting our civil liberties and freedoms is critical to the long-term health of our country.”

— Harriet Hageman, Senior Litigation Counsel, NCLA 

ABOUT NCLA 

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

Download the full document

July 2, 2020 | NCLA, Gov. Baker File Petition Asking Mass. Supreme Judicial Court to Hear Civil Defense Act Case

Washington, DC (July 2, 2020) – The New Civil Liberties Alliance, a nonpartisan, nonprofit civil rights group, has filed a joint petition with Governor Charlie Baker and the Attorney General’s Office to transfer the case of Dawn Desrosiers, et al. v. Governor Charles D. Baker from Worcester Superior Court to the Supreme Judicial Court. The petition asks the Court to decide whether Governor Baker’s March 10, 2020 Civil Defense State of Emergency declaration and the ensuing emergency orders responding to the coronavirus pandemic are lawful exercises of gubernatorial authority.

At issue is whether the Civil Defense Act provides authority for Governor Baker to declare a state of emergency and whether issuance of emergency orders violates the separation of powers. The plaintiffs, which include local entrepreneurs, church pastors, and the headmaster of a private school, contend that Governor Baker has arbitrarily categorized some businesses, organizations, and activities as “essential,” and banned others by sorting them into reopening phases. They also argue that the emergency orders violate their constitutional rights to due process and free assembly. Baker has closed schools and daycare facilities, and he has limited private gatherings in churches, beaches, and parks.

The Governor’s orders are invalid because the COVID-19 pandemic is not a “civil defense emergency.” The Civil Defense Act is a 1950’s-era statute designed to protect the Commonwealth from foreign invasions, armed insurrections, and civil unrest associated with natural disasters. It has never before been invoked for a health emergency. On the other hand, the legislature passed the Public Health Act explicitly to empower health authorities to control and prevent transmission of infectious diseases dangerous to public health. Under the Public Health Act, principal responsibility for disease control lies with local boards of health, not with the Governor.

There are at least six other cases currently pending in state and federal courts challenging Governor Baker’s COVID-19 pandemic response. Given the nature of the current pandemic and the rise in COVID-19 cases in other states, a decision by Massachusetts’s highest court is in the public interest because it will provide clarity regarding the validity of the process Governor Baker has used to address the health crisis.

NCLA released the following statement:

“This joint petition is an encouraging development. 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. When it does, we are confident in our chances for success.”

— Michael P. DeGrandis, Senior Litigation Counsel, NCLA

ABOUT NCLA

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

Download the full document

June 1, 2020 | NCLA ‘Bay Staters’ Lawsuit Contests Validity of Gov. Baker’s Civil Defense State of Emergency

Washington, DC (June 1, 2020) – In response to the serious health threat posed by the COVID-19 pandemic, Massachusetts Governor Charlie Baker declared a state of emergency under the Massachusetts Civil Defense Act to justify imposing draconian, “one-size-fits-all” measures across the Commonwealth. Under his Civil Defense State of Emergency, the Governor has arbitrarily declared which businesses are “essential” and closed those he determined were not. In addition, he has closed schools and daycare facilities, and he has limited private gatherings in churches, beaches, and parks. Because he issued his orders under a Civil Defense State of Emergency, disobedience is a criminal act.

Today, the New Civil Liberties Alliance, a nonpartisan, nonprofit civil rights group filed a complaint in Massachusetts Superior Court representing local entrepreneurs, church pastors, and the headmaster of a private school against Governor Baker’s unlawful orders. The lawsuit aims to return constitutional governance to the Commonwealth by overturning the Civil Defense State of Emergency, which Baker improperly declared.

The Governor’s orders are invalid because the COVID-19 pandemic is not a “civil defense emergency.” The Civil Defense Act is a 1950’s-era statute designed to protect the Commonwealth from foreign invasions, armed insurrections, and civil unrest associated with natural disasters. It has never before been invoked for a health emergency. On the other hand, the legislature passed the Public Health Act explicitly to empower proper authorities to control and prevent transmission of infectious diseases dangerous to public health. 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 has been aggravated by new threats to the economic, social, spiritual, and constitutional health of the Commonwealth. Governor Baker’s plan to reopen the economy does little to ease the burdens of these crises. We are asking 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 null and void. This ruling would permit local boards of health to establish strategies befitting their communities to reopen businesses while still preventing the spread of COVID-19. The legislature could then take up any issue requiring broader applicability to the Commonwealth.

NCLA released the following statements:

“By applying the Civil Defense Act instead of the Public Health Act, the governor has seized extra power to which he is not entitled. Fear of a deadly virus is not a reason to abandon constitutional governance. Governor Baker doesn’t have the power to make law by royal decree—lawmaking is the legislature’s exclusive responsibility. Bay Staters can best protect each other’s lives and livelihoods through solutions passed by their legislators—the elected officials most familiar with the needs of the local communities they serve.”

–Michael P. DeGrandis, Senior Litigation Counsel, NCLA

“I don’t think the Governor knows the chaos that his arbitrary orders are creating. He is picking the winners and the losers of this pandemic crisis by telling us how to run our businesses. It’s time to return the business decision-making back to the business owners.”

–Robert Walker, Plaintiff, Apex Entertainment LLC & Devens Common Conference Center LLC

ABOUT NCLA

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

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OPINION

Baker usurping the role of Legislature | CommonWealth Magazine

The Governor’s Executive Order shutting down “non-essential” businesses and organizations has been in place since March 24. While Gov. Charlie Baker has modified the order and eased some of his restrictions, that doesn’t legitimize them. His orders are not laws passed by the Legislature and do not apply Massachusetts’ existing laws for handling health crises.

The governor has usurped the role of the Legislature by exercising the police power (the power to regulate the health, safety, and morals of society) in the manner he sees fit. Governor Baker’s purported authority flows from the Civil Defense Act, but as the name implies, the Civil Defense Act exists to protect Massachusetts from invasion, armed insurrection, or storm destruction that could eliminate essential infrastructure providing clean water and shelter. The act does not apply to a pandemic.

As CommonWealth reported recently, “Baker finds himself shoehorning 2020 concerns about social distancing, contact tracers, and non-essential businesses into a 1950 law preoccupied with military threats and nuclear fallout shelters.”

The authority to exercise the police power is the Legislature’s, and the Legislature has already spoken on the issue of pandemic in the Public Health Act. For one thing, the Public Health Act calls for the state Department of Public Health to promulgate appropriate disease-mitigating regulations. The act also grants local boards of health significant authority to protect residents from infectious disease outbreaks—including restricting travel from out-of-state infected areas and quarantines for sick individuals. Don’t bother looking for a provision in the act that allows the governor to close businesses across the state. You won’t find it.

There’s good reason for the Legislature’s policy choice of local control. Massachusetts is a diverse state, and its people have diverse interests and needs. COVID-19 has not impacted Pittsfield the same way it has impacted Monterey—and they’re in the same county and barely 30 miles apart. How different are the health dynamics in Boston from those in Lenox?

According to Baker’s four-phased re-opening plan, some Massachusetts businesses and organizations would have to wait over 100 days, at the earliest, to re-open. Easing restrictions is a welcome change, but his authority to take any action, especially actions premised on civil defense, must always have a clear and firm legal basis. A group of entrepreneurs, pastors, and an educator have filed a complaint in state court seeking a declaration that the governor’s actions are unlawful, for this reason.

COVID-19 is a very real threat to the health and lives of Bay Staters, especially those with underlining health conditions and the elderly. The plaintiffs and their neighbors were asked to stay at home, not go to work, and to put their lives on hold so that Massachusetts could flatten the curve and prevent the virus from overwhelming our emergency healthcare facilities. Appreciating the seriousness of the situation, they gladly did that.

Now the curve has been flattened, but the governor’s executive orders are still in place. The orders continue to push countless businesses and individuals to the brink of insolvency, while infringing on the civil rights of almost everyone in the Commonwealth.

Founding father John Adams insisted that the Massachusetts Constitution include a robust separation of powers, where the executive could not exercise legislative authority, “to the end it may be a government of laws and not of men.” If Baker can rule by decree, Massachusetts government has become a government of men—or one man, to be precise.

The plaintiffs believe the governor’s intentions are well-meaning, but they also recognize that the government must return to its prior condition—ruled by laws. If successful, local boards of health will implement strategies befitting their communities to prevent spread of COVID-19, and the Legislature can take up any issue requiring broader applicability to the Commonwealth.

Just as John Adams intended.


Originally published in CommonWealth Magazine on June 1, 2020

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