“Free people don’t social distance themselves from civil liberties during a pandemic,” — Mike DeGrandis, NCLA Senior Litigation Counsel

In June, the New Civil Liberties Alliance, a nonpartisan, nonprofit civil rights group, filed a complaint in Massachusetts Superior Court (SJC) on behalf of mom-and-pop businesses, two church pastors, the head of a religious academy, and others against Governor Baker’s unlawful Civil Defense Act State of Emergency. The lawsuit, Dawn Desrosiers, et al. v. Governor Charles D. Baker, aims to restore constitutional governance to the Commonwealth. NCLA and the Bay Staters represented in the case are looking to return 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.

But on December 10, 2020, Massachusetts SJC rendered a decision in the Desrosiers v. Baker case upholding Governor Baker’s pandemic orders as consistent with the Civil Defense Act (CDA). The order delivered a blow to the plaintiffs who have suffered incalculable economic and constitutional harm for the last 6 months as a result of Baker’s orders. The constitutional rights to due process of law and to be governed only by laws passed by the state legislature have been denied by the high court.

NCLA points to numerous flaws in the decision and questions whether the Commonwealth still enjoys a republican form of government after this ruling. If the Massachusetts and United States Constitutions can be suspended in whole or in part during times of crisis, permitting a governor to make law by decree and dispense with the law as he sees fit, the government guaranteed to Massachusetts’ residents in Article IV of the United States Constitution is gone.

Governor Baker, nor any governor for that matter, has the power to—apply the laws to some people but not others. The notion that the governor may do so without hearings or due process is absurd and dangerous.

The SJC ruled that the Civil Defense Act is important to allow the Governor to “take swift, coordinated efforts to protect public health.” But the SJC never explains why, ten months after the Civil Defense State of Emergency declaration, executive-made law is consistent with the Massachusetts Constitution or why it is 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 covers 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 is fundamentally flawed and ripe for review by the U.S. Supreme Court.

For more information visit the case page here.