I’ve Got Plenty to Be Thankful For

 

 

Hello! I’m Michael DeGrandis. I’m Senior Litigation Counsel at the New Civil Liberties Alliance, and this is a special Thanksgiving Edition of my blog post, available at nclalegal.org. Only instead of doing all the hard work of writing my post, I decided to draw it on a whiteboard!

Let’s start with a riddle: If April showers bring May flowers, what do May flowers bring? Pilgrims of course! Sorry about that. Maybe the quarantines and curfews are getting to me.

It’s been a crazy year. All of us have been touched, to a greater or lesser extent, by the COVID-19 pandemic, not to mention the related social, political, and economic upheaval. But we’ve still got plenty to be thankful for this Thanksgiving, and I’d like to explore that with you on my whiteboard.

This year marks the 400th anniversary of the founding of the Plymouth Colony on Cape Cod Bay. After 10 months splish-splashing across the Atlantic Ocean, about 130 Pilgrims and crewmen landed on what the Pilgrims had hoped would be a “new Promised Land.” They wanted to be free to worship as they pleased, and the New World offered them the best hope for a new, freer life.

I’ll say this much for 2020: as bad as it’s been, at least it’s not 1620’s-bad. Nearly half of the Pilgrims and crew died that winter because they were ill-prepared for the challenges that awaited them in the harsh coastal New England winter. And were it not for the Wampanoag, it could have been even worse. The Wampanoag shared their food, taught the Pilgrims how to plant and fish in Massachusetts’s un-European-like environment, and entered into a defense agreement to keep each other safe from other tribes less-keen on their new immigrant neighbors.

So, in the fall of 1621, it made sense that the Pilgrims would host a three-day thanksgiving feast attended by 90 of their Wampanoag rescuers and friends. They gathered together to thank God for blessing them—despite the extraordinary hardships and tragedies that they experienced and the harsh realities of another winter on the horizon. There’s a lesson in there for us, 400 years later, as we enter our own winter of uncertainty.

As for myself, I know that I’ve got plenty to be thankful for this Thanksgiving. Family and friends, of course. And my colleagues here at NCLA and NCLA’s donors that don’t just keep the lights on, but enable us to provide pro bono representation that includes covering expenses for our clients, like filing and printing fees—and even travel. Expenses that many of our clients couldn’t afford.

I would like to take this opportunity, though, to focus on one thing that I’m particularly thankful for this year: NCLA’s clients. As critical as it is for NCLA to have scrupulous donors and dedicated and capable leadership, support staff, and attorneys, it’s NCLA’s clients that make our commitment to a renewed civil rights movement possible.

If you’re watching this whiteboard presentation, you probably already know that NCLA is a nonpartisan, nonprofit civil-rights organization and public-interest law firm, devoted to protecting constitutional freedoms from administrative power. The “civil liberties” in NCLA’s name include rights at least as old as the United States Constitution and the 50 state constitutions themselves, such as trial by jury, due process of law, the right to be tried in front of an impartial and independent judge, and the right to live under laws made by elected lawmakers rather than by presidents, governors, or bureaucrats.  Yet these selfsame rights are also very contemporary—and in dire need of a reawakening—precisely because chief executives, Congress, state legislatures, and federal, state, and local administrative agencies, have trampled them for so long.

But NCLA can’t achieve its mission to restore constitutional governance without courageous clients willing to fight for their, and their fellow citizens’, civil liberties. And let’s face it, when you challenge the government in court—it’s own court—it’s an uphill battle. Yet, our clients never shy away from the challenge.

Take, for example, the Petitioners in Desrosiers v. Baker, a case currently pending before Massachusetts’s highest court. Our clients are small business owners with hair and tanning salons, restaurants, entertainment facilities, a gym, a school, and churches. They understand that COVID-19 is a serious disease and that there’s much Massachusetts should do to keep them safe from the virus. But they also understand that the only way to secure the health, safety, welfare, and civil liberties of all Massachusetts residents—and to do so simultaneously—is to stay true to the Massachusetts and United States Constitutions.

But Massachusetts Governor Charlie Baker isn’t abiding by the Constitution. Instead of using Massachusetts’s Public Health Act to address the pandemic as the legislature requires, he is using Massachusetts’s Civil Defense Act—an Act that gives the Governor extraordinary power to protect Massachusetts from invasions, riots, and catastrophic storms. He declared a Civil Defense State of Emergency to address a health crisis. He declared our clients’ businesses, churches, and school “non-essential.” Even in partially reopening the state, he continues to pick winners—like casinos—and losers—like arcades.

Governor Baker’s executive decrees are arbitrary and they violate due process, the right to free assembly, and a whole host of other civil liberties. As executive-made law, they are a direct affront to Massachusetts’s separation of powers. Law-by-decree is for kings, not governors of a free people.

Governor Baker may not think our clients’ business, educational, or spiritual endeavors are essential, but they are essential to our clients, and our clients have a constitutional right to be governed only through validly enacted law by their elected legislators.

Like the Founders themselves, our clients commit themselves to taking a stand against this unlawful denial of Massachusetts residents’ civil liberties, and they are doing so against all odds. It’s no stretch to say that these principled citizens are modern day Adamses, Hancocks, and Reveres. They know that even if they win and the responsibility for protecting public health goes back to the legislature, they won’t get money to compensate them for the loss of business or to cover the bills that have mounted during this challenging time. Nor are there any guarantees that the legislature will do a better job than the Governor. But at least the separation of powers will be restored, which is the principal bulwark protecting our civil liberties.

I am also thankful that I work for a civil rights organization that stands by our clients—even outside the courtroom. For example, several of the Desrosiers v. Baker Petitioners contacted me a couple of weeks ago because they ran into a problem.

Massachusetts announced a $50 million grant program to help businesses adversely impacted by the pandemic and Governor Baker’s COVID-19 orders. Grant-preference will be given to small businesses whose owners are women, minorities, veterans, members of other underrepresented groups, and those most negatively impacted by the COVID-19 pandemic.

But the last question posed on the application curiously read: “Is your business a party to ligation involving the Commonwealth or municipality you operate in?” Wait. What?

Because the Massachusetts Supreme Judicial Court still hadn’t ruled on our case, our woman-and-minority-owned small business clients (which are most of them) were disqualified. I attempted to contact the grant administrating agency the next day, but when I did not immediately hear back, I contacted the Massachusetts Attorney General’s Office. The grant’s litigation ban seemed like a punishment levied against anyone involved in a legal dispute with the Commonwealth. That’s not only unconstitutional, it doesn’t make any sense.

Let me give you an example as to why the litigation ban makes zero sense. Imagine a state contractor’s truck is involved in an accident, and there’s litigation to determine to whom the liability for the accident flows—the contractor or the Commonwealth. Under the terms of the grant, the contractor would be ineligible. Indeed, since grant-disqualification is based on whether the applicant is “involve[ed]” in litigation, the contractor would be disqualified even if the contractor and the Commonwealth were on the same side, denying that either has any liability for the accident! What does that have to do with whether the contractor should get a COVID-19 grant?

The Attorney General connected me with the head of the grant program, who agreed to immediately withdraw the litigation ban. Just three business days after our clients’ disqualification from the COVID-19 grant program, the problem was solved. I’m glad I could help because not all problems have happy endings. But it’s vitally important to us at NCLA that we do our best to stand by our brave and principled clients, even outside the courtroom. I don’t know whether we will prevail in Desrosiers v. Baker, but I do know that we wouldn’t have this opportunity to restore constitutional order to Massachusetts without our clients. So we stand by them. I am humbled by all NCLA’s clients’ courage, and honored that they trust the NCLA team to represent them in their times of need.

Governed by the Mayflower Compact, the Pilgrims persevered through tremendous hardships to make their vision for a freer life, a reality. And for this, they gave thanks.

Thanksgiving in 2020 may be celebrated differently from prior years, but that won’t change how overwhelmingly thankful I am for the Constitution and the principled clients of NCLA who stand up for the Constitution, and all the civil liberties it protects.

I hope you have a wonderful Thanksgiving!

November 25, 2020