State’s top court, mulling Baker’s emergency authority, told he’s ‘turned the government upside down’

The John Adams Courthouse, at left, the home of the Supreme Judicial Court. Chin, Barry Globe Staff

The state’s highest court is weighing a challenge to the sweeping emergency powers Governor Charlie Baker has wielded amid the pandemic, setting up a decision with potentially far-reaching effects on the scope of gubernatorial authority and the millions of lives it touches.

The Supreme Judicial Court, meeting virtually without its chief justice, heard arguments Friday in a lawsuit brought by a group of business owners seeking to overturn the dozens of executive orders Baker has issued since declaring a state of emergency six months ago in response to COVID-19.

The case focuses on the 1950 Civil Defense Act, a Cold War-era law that grants the governor broad authority in the face of enemy attacks, sabotage, riots, fire, floods, or what it calls other “natural causes."

It’s under the final phrase in which Baker has acted, arguing that the pandemic — while not specifically cited in the 22-section law — qualifies in allowing him to move quickly without legislative approval, including in ordering new travel rules, limiting gatherings, and closing businesses in a bid to slow the spread of the virus.

But Michael P. DeGrandis, an attorney for the New Civil Liberties Alliance, which filed suit against the Republican governor on behalf of a group of salons, restaurants, and religious organizations, said the act makes no mention of a disease, and yet Baker has wielded a police power he said should be reserved for the Legislature.

Baker also cited 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,” though the authority it grants his administration does not stretch nearly as far as that under the Civil Defense Act.

“The governor’s taken control and he’s turned the government upside down,” DeGrandis told six justices Friday. (Chief Justice Ralph D. Gants, who suffered a heart attack last week, did not attend, but will participate in the decision.)

“This is an issue of process and what is the character of Massachusetts government,” DeGrandis said. “Is it a government of laws or a government of men? That’s the key question here.”

Over the course of the hour-long hearing, DeGrandis repeatedly faced questioning from the justices, who, at times, cut into his arguments to probe deeper on his rationale. The court is dominated by five Baker nominees, with only Gants and Justice Barbara A. Lenk, who was slated to retire last month but delayed it to December, having been tapped by Baker’s predecessor, Deval Patrick.

“It seems to me that the Civil Defense Act is meant for basically when all hell is breaking loose out there,” Justice Scott L. Kafker told DeGrandis at one point. “And the Public Health Act is dealing with, I mean again, we have health problems constantly. We have disease outbreaks constantly. It’s a level of magnitude where these two statues differ.”

DeGrandis argued that there are ways to both protect public health and be mindful of people’s civil liberties.

“There is a way to do this simultaneously,” he said.

The justices also probed whether the Legislature has, in effect, authorized Baker to act. The Democratic-led chambers have offered Baker broad deference as the state of emergency has stretched on for months, giving no indication it intends to try to check Baker’s emergency decision-making.

“It also has the continuous ability to pass laws, which it’s done for elections and other things during the crisis,” Kafker said, asking DeGrandis: “Doesn’t this all hinge on the fact that you don’t think a pandemic is a natural cause under the statute?

“It’s not every time someone gets sick in Massachusetts,” the judge said of a possible trigger for the emergency power. “It’s a pandemic that threatens our entire way of life.”

DeGrandis argued that by using the Civil Defense Act, Baker could open the door for him and future governors to seize on an array of naturally occurring scenarios in using the law’s far-reaching authority, which gives the governor power over everything from public records, to transportation, to the sale of food.

“If ‘other natural causes means’ every natural occurrence of any sort, then there’s absolutely no limiting principle. When can’t a governor declare a civil defense state of emergency?” DeGrandis said.

Well, this is not every situation,” Justice David A. Lowy responded. “This is obviously a pandemic where the spread can be from asymptomatic people."

Doug Martland, an attorney in Attorney General Maura Healey’s office representing the administration, argued Baker is appropriately using the statute, regardless of how long the state of emergency stretches for.

“The Legislature did not intend duration, and the potential of duration . . . of an event to determine whether or not there should be a civil defense emergency,” Martland said. “What we shouldn’t be doing is using that duration to cut off an emergency that we’re clearly in the middle of right now.”

Massachusetts had reported 8,971 total deaths from COVID-19 as of Friday, and 443 more cases, pushing the statewide total to 122,202 confirmed cases. Infections have continued to climb as school officials ready for a new academic year; colleges try to navigate the potential for fresh outbreaks, sometimes with a heavy hand; and cities and towns face an ongoing risk from the disease.

The lawsuit challenging Baker’s authority was filed on behalf of 10 plaintiffs — including hair and tanning salon owners, a North End restaurateur, and two church pastors — and by 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’ identities.

It wasn’t clear Friday when an opinion from the high court might come.

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