The state’s highest court on Thursday upheld Governor Charlie Baker’s use of emergency powers to prevent the spread of the coronavirus, finding he has been within his rights to limit gatherings, shutter certain businesses, and order people to wear face coverings, among other measures taken by the state in the face of a historic health crisis.
“We conclude that the [state’s Civil Defense Act] provides authority for the Governor’s March 10, 2020, declaration of a state of emergency in response to the COVID-19 pandemic and for the issuance of the subsequent emergency orders,” wrote Massachusetts Supreme Judicial Court Justice Elspeth B. Cypher in the panel’s 40-page ruling.
In rejecting a challenge from a group of business owners, Cypher said Baker’s orders also did not violate Article 30 of the Massachusetts Declaration of Rights, which provides for separation of powers between the three branches of government, and did “not violate the plaintiffs’ Federal or State constitutional rights to procedural and substantive due process or free assembly.”
Cypher noted the substantial human toll of the pandemic.
“COVID-19 has taken a devastating toll on the Commonwealth, the United States, and the world,” she wrote. “As of this writing, in Massachusetts alone, over 250,000 people have been infected and over 10,000 people have died. During the April 2020 surge in Massachusetts, the number of infections often exceeded 1,500 per day and there were more than one hundred deaths per day from COVID-19 for the majority of the month. In addition to the medical toll COVID-19 has inflicted, the personal toll resulting from the virus and containment measures has been immeasurable. Behind every infection and every death are those who could not visit loved ones in the hospital due to visitation restrictions, or who could not grieve the loss of loved ones with family and friends in the traditional manner.”
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 — by Michael P. DeGrandis of the New Civil Liberties Alliance and Danielle Huntley Webb, an attorney and board chair of 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.
DeGrandis, senior litigation counsel at the alliance, blasted the SJC ruling in a statement.
“Massachusetts has now shepherded the liberty-loving principles of the American Revolution from cradle to grave,” DeGrandis said. “John Adams must be spinning in his tomb at the news that the colony that he and his fellow patriots fought so hard to liberate from arbitrary royal decrees, and establish as a republic grounded in a government of laws and the consent of the governed, has become what Adams feared most.”
DeGrandis’s words were echoed in the statement by Mark Chenoweth, the alliance’s executive director and general counsel.
“Among other problems, it defies belief that the Massachusetts Supreme Judicial Court would rely so heavily in its decision today on a U.S. Supreme Court opinion that was superseded last month,” Chenoweth said. “What are the justices thinking? ... NCLA will closely examine the strongest grounds for appeal of this decision, which is remarkable in its cavalier disregard for Americans’ civil liberties.”
Baker’s office didn’t immediately comment.
The plaintiffs in the lawsuit had focused, in part, on the wording of 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 “other natural causes.” The plaintiffs argued that the law made no mention of diseases.
But the justices differed. “When examining the phrase ‘other natural causes’ ... it is apparent that the phrase encompasses a pandemic on the scale of the COVID-19 pandemic,” Cypher wrote for the court.
“Given that COVID-19 is a pandemic that has killed over a million people worldwide, it spreads from person to person, effective vaccines have not yet been distributed there is no known cure, and a rise in cases threatens to overrun the Commonwealth’s hospital system, it is a natural cause for which action is needed to ‘protect the public peace, health, security and safety, and to preserve the lives and property of the people of the commonwealth,’” Cypher continued.
She acknowledged, however, that the scope of the Civil Defense Act, or CDA, is limited and that not every public health emergency would justify the sweeping actions taken during the pandemic.
“The distinguishing characteristic of the COVID-19 pandemic is that it has created a situation that cannot be addressed solely at the local level,” Cypher wrote. “Only those public health crises that exceed the resources and capacities of local governments and boards of health, and therefore require the coordination and resources available under the CDA, are contemplated for coverage under the CDA. Therefore, although we hold that the COVID-19 pandemic falls within the CDA, we do not hold that all public health emergencies necessarily will fall within the CDA, nor do we hold that when the public health data regarding COVID-19 demonstrates stable improvement, the threshold will not be crossed where it no longer constitutes an emergency under the CDA.”
Material from prior Globe stories was used in this report.
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