SJC off base on Baker’s emergency powers

Civil Defense Act cannot be used to fight a pandemic

DURING LAST WEEK’S Supreme Judicial Court hearing on the lawsuit challenging Gov. Charlie Baker’s COVID-19 emergency declaration and orders, several justices appeared receptive to the argument that the governor’s declaration was authorized by the Civil Defense Act of 1950.  It is difficult to imagine how any intellectually honest analysis could yield that result.

Much of the argument centered on one small statutory phrase – “fire, flood, earthquake, or other natural causes” – as the governor argued an epidemic could be shoehorned into “other natural causes.”  As the plaintiffs pointed out, however, the statutory interpretation principle of ejusdem generis, meaning “of the same kind,” that phrase could only mean “other” things that are like fires, floods, and earthquakes.  Since those phenomena are all sudden events of objective duration that cause physical destruction within an objectively defined area, an epidemic simply does not qualify.

In addition, the statute as a whole leads to the same conclusion.  Section 2 created the Massachusetts Emergency Management Agency to coordinate “civil defense,” which section 1 defines as “emergency functions,” including utilizing the National Guard, “for the purpose of minimizing and repairing injury and damage resulting from disasters caused by attack, sabotage, or other hostile action; or by riot or other civil disturbance; or by fire, flood, earthquake or other natural causes.”

Specified “emergency” functions are what one would expect for sudden disasters affecting a defined area:  “firefighting and police services,” “medical and health services,” “rescue,” “engineering . . . services,” “evacuation of persons from stricken areas,” “emergency welfare services,” “emergency transportation,” “plant protection,” and “restoration of public utility services.”

Similarly, the emergency powers that section 5 provides the governor are also oriented toward sudden disasters in a specific area—for example, he may seize real property, vehicles, and other means of transportation (with compensation for their taking or use).  And section 7, discussed in greater detail below, provides additional powers for the same types of events, including authority to maintain public utility services, secure the protection of public and private property, and suspend statutes that interfere with the production or transportation of materials needed for the emergency.

Moreover, even if, despite all the above, one were to torture “fire, flood, earthquake or other natural causes” to include an epidemic, the full operative language, not addressed at the hearing, is “upon the occurrence of any disaster or catastropheresulting from . . . fire, flood, earthquake or other natural causes.”  Hence the statute cannot be triggered by a mere risk of disaster or catastrophe, but only its actual occurrence.  While much of the hearing improperly adopted a post hocperspective, the governor’s emergency declaration was based on the occurrence of 91 “presumed” COVID-19 cases and the “extreme risk of person-to-person transmission.”  Under the statute, mere risk is irrelevant, and if 91 cases of any disease (among the Commonwealth’s 6.9 million citizens) constitutes a “disaster or catastrophe,” the meaning of those words will have been stretched beyond absurdity.

Further, entirely absent from the hearing—and even from plaintiffs’ briefs—was examination of the governor’s specified powers even if his emergency declaration was valid.  While the orders purported to shutter entire “non-essential” businesses seven days a week, section 7 only authorizes regulation of “[l]abor, business or work on Sundays or legal holidays” (likely so employees might be authorized or even required to work, and businesses to operate, on those days if needed to meet the emergency).  While “[a]ssemblages . . . or pedestrian travel” could be regulated, this was only “to protect the physical safety of persons or property” (likely to keep people out of the affected area).  While “educational facilities supported in whole or in part by public funds” could be regulated, this was only “to extend the benefits or availability thereof,” not to close those facilities, nor could private schools be regulated.  And no power is provided to close places of worship, prohibit private gatherings, forbid citizens to engage in normal human interaction at normal proximity, or require them to wear masks when in one another’s presence.

Rather than the Civil Defense Act, it is chapter 111 of the Massachusetts General Laws that provides the governor, Department of Public Health, and local boards of health with ample powers to address an epidemic.  Among other things:  DPH may adopt regulations “for the control and prevention” of “diseases . . . dangerous to the public health”; DPH may (and does) require the reporting of all cases of “contagious or infectious diseases” that are dangerous to the public health, and designate hospitals to receive such patients; DPH or local boards may investigate all such cases, isolate all infected persons in their homes or such hospitals, and quarantine other household residents (in each case with compensation for lost wages); and local boards may “make reasonable health regulations.”  Also, under the state Administrative Procedure Act, DPH may adopt emergency regulations for up to 90 days without public notice or hearing.

Nor would the Legislature in enacting the Civil Defense Act have been ignorant of these provisions, as some date to colonial days.  As just one example, chapter 9 of the Province Laws of 1701-2 provided:  “ [W]hen it shall happen any person . . . to be visited . . . with the plague, small pox . . . or other contagious sickness, . . . the selectmen . . . are hereby impowred to take care . . . by removing . . . such sick or infected person . . . to and in a separate house or houses.”

Notably, if the Supreme Judicial Court properly interprets the Civil Defense Act and invalidates the governor’s orders, it can avoid deciding the various constitutional issues that plaintiffs have raised.  Indeed, the very notion that the validity, under multiple provisions of both the state and federal constitutions, of some 49 or more different orders, each of which affects innumerable distinct classes of individuals, businesses, places of worship, schools, and other organizations, could be adjudicated based solely on three legal briefs, and without a factual record, would seem too radical even to entertain.

Meet the Author
As Chief Justice John Marshall famously said in 1803 in Marbury v. Madison, “It is emphatically the province and duty of the judicial department to say what the law is.”  In Desrosiers v. Baker, one hopes the Supreme Judicial Court will accord the Civil Defense Act its only intellectually honest reading.

David Geiger is a partner and former litigation department chair at Foley Hoag LLP, and an elected member of the American Law Institute.  The views expressed here are solely his own.