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Business owners rejected by SJC now want Supreme Court to review Baker’s use of emergency powers during COVID pandemic

Massachusetts Governor Charlie Baker.
Massachusetts Governor Charlie Baker.Jessica Rinaldi/Globe Staff

A group of business owners who unsuccessfully sought last year to overturn Governor Charlie Baker’s emergency powers during the pandemic is petitioning the Supreme Court to review the case, according to its lawyer, potentially extending what’s been a yearlong challenge to the Republican governor’s authority.

Michael P. DeGrandis, an attorney with the New Civil Liberties Alliance that’s representing the business owners, argued Monday that the state’s Supreme Judicial Court erred in rejecting its lawsuit to overturn the dozens of emergency orders Baker has issued to slow the spread of COVID-19.

DeGrandis acknowledged that it’s unlikely the Supreme Court could act on its request before August, when Baker said he intends to lift the last of the restrictions he’s put on businesses and gatherings.

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But the governor has not indicated when he could end Massachusetts’ state of emergency declaration. Baker has wielded his emergency powers under a Cold War-era state law, known as the Civil Defense Act, which grants him broad authority to act in the face of certain crises.

“Does that mean he ends the emergency [in August]? Maybe, maybe not. It’s completely up to him,” DeGrandis said Monday, arguing that with that authority, Baker could again reimpose restrictions should the virus surge anew. “You’ve got this sword of Damocles hanging over your head.”

Massachusetts’ SJC in December upheld Baker’s use of the emergency powers, ruling that he has been within his rights to limit gatherings, shutter certain businesses, and order people to wear face coverings.

In rejecting the lawsuit, the state’s highest court said that Baker’s orders also did not violate the Massachusetts Declaration of Rights, which provides for separation of powers between the three branches of government, nor did they violate the plaintiffs’ federal or state constitutional rights “to procedural and substantive due process or free assembly.”

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The plaintiffs — which included hair and tanning salon owners, a North End restaurateur, and two church pastors — had challenged Baker’s use of the 1950 Civil Defense Act, which gives the governor broad powers in the face of enemy attacks, sabotage, riots, fire, floods, or “other natural causes.” The law, they argued, made no mention of diseases.

But the SJC disagreed, saying it was apparent the phrase “natural causes” also encompasses a pandemic “on the scale of the COVID-19 pandemic,” Justice Elspeth B. Cypher wrote for the court.

DeGrandis said in petitioning the Supreme Court, the plaintiffs are seeking a review on the SJC’s ruling as they relate to their federal constitutional rights, saying at this stage, they can’t challenge the ruling on the basis of state law or the Massachusetts Constitution.

“The [US] Constitution doesn’t lose its vitality just because there’s a crisis,” DeGrandis said.

Baker said Monday he would not comment directly on the petition, but he defended his various orders, saying they have been in line with federal and state public health guidelines.

“What we’ve done has been pretty consistent with what most [other states] have done as well,” Baker said.

The New Civil Liberties Alliance is a Washington, D.C.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 lawsuit also has the backing of the Fiscal Alliance Foundation, an arm of the Boston conservative nonprofit, the Massachusetts Fiscal Alliance.

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The business owners first sued Baker on June 1 of last year.

“Today’s actions should not be misinterpreted as a judgement to the policies that were ordered during the last year [and] a half. Like many of us, some of those policies we agree with, others we do not,” Danielle Webb, an attorney and the chairwoman of the Fiscal Alliance Foundation, said in a statement. “Rather, we are supporting the petition in hopes that future orders by the Governor, whomever that may be, are based on strong legal grounds and not fears or the politics of the day.”

Baker in recent weeks has eased the state’s outdoor mask mandate, and as of Monday, allowed capacity at Fenway Park and TD Garden to increase to 25 percent, singing to resume at indoor venues, and road races to begin again.

Bars, breweries, and wineries can reopen with restrictions on May 29, with gathering limits ballooning to 200 people indoors and 250 people outdoors then, too. Businesses, including nightclubs, could reopen on Aug. 1, when virtually all limits on businesses and gathering will be lifted.


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