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Baker, businesses ask Mass. high court to hear lawsuit challenging governor’s emergency powers

The John Adams Courthouse, home of the state's highest court.Lane Turner/GLOBE STAFF FILE

Governor Charlie Baker and a group of business owners suing to overturn his emergency orders amid the coronavirus pandemic are asking the state’s highest court to hear the lawsuit, arguing it could provide clarity about his authority during this unprecedented time.

The petition to the Supreme Judicial Court comes more than a month after the businesses, with the backing of a local conservative group, filed a lawsuit challenging the emergency powers Baker, a Republican, has used under a 70-year-old Cold War-era law to guide the state through the public health crisis.

But the lawsuit is just one of six pending at the state or federal level offering similar challenges, raising the potential for a patchwork of court decisions, according to the motion.


A high court decision also could dramatically impact the sweeping, and indefinite, power Baker has wielded for months in closing businesses, mandating masks in public, and limiting crowds to try to stem the virus’s spread. State officials have reported more than 109,000 cases and 8,132 deaths during the pandemic, making Massachusetts one of the country’s hardest-hit states.

“A definitive ruling by the full Court on the Governor’s authority and related legal issues will eliminate the possibility that judges in the other pending cases — or any additional cases yet to be filed — might issue conflicting decisions, with the confusion and disruption that would inevitably ensue,” the joint, nine-page petition reads.

“Given the unprecedented nature of the current pandemic, a decision by this Court will also serve the public interest in clarity and consistency regarding the validity of the public health measures implemented through the Governor’s emergency orders.”

The businesses sued Baker on June 1, and amended their complaints weeks later, arguing that his emergency declaration and the orders that followed violate both the “principle of separation of powers,” and the plaintiffs’ rights to “due process and free assembly.”


Baker, whose administration is represented by Attorney General Maura Healey’s office, believes the challenge is “invalid and subject to dismissal,” according to the motion. But both sides agree taking the case to the SJC would be an “appropriate exercise of this Court’s discretion.”

In declaring a state of emergency, Baker leaned in part on the authority of the Civil Defense Act, which grants him sweeping authority in the face of enemy attacks, sabotage, riots, fire, floods, or other “natural causes.” It does not specifically cite a pandemic or public health emergency as a trigger, but Baker also points to a separate state law that empowers his public health commissioner to take action in the case of an emergency that “is detrimental to the public health.”

The business owners’ lawsuit was filed on behalf of 10 plaintiffs — including hair and tanning salon owners, a North End restaurateur, and two church pastors — and by a pair of attorneys: Michael P. DeGrandis, of the New Civil Liberties Alliance, and Danielle Huntley Webb, an attorney and board chair of the the Fiscal Alliance Foundation.

The New Civil Liberties Alliance is a Washington, D.C.-based nonprofit that advocates against what it calls the “unconstitutional administrative state,” and has taken as much as $2 million in contributions from the Charles Koch Foundation, according to nonprofit filings.

The Fiscal Alliance Foundation acts as a legal assistance arm of the Massachusetts Fiscal Alliance, a Boston-based conservative nonprofit known for shielding its donors.


Matt Stout can be reached at matt.stout@globe.com. Follow him on Twitter @mattpstout.