SJC seems wary of upending COVID-19 fight

Group questions legal authority for Baker emergency declaration

SEVERAL MEMBERS of the Supreme Judicial Court seemed wary on Friday of upending the fight against COVID-19 during a hearing on a case challenging the sweeping powers Gov. Charlie Baker has exercised over the last seven months in dealing with the coronavirus pandemic.

The justices, meeting via a Zoom call, are being asked to declare the governor’s March 10 emergency declaration and his subsequent slew of executive orders illegal and void. The plaintiffs, a group of business owners and pastors, say the governor’s reliance on the 1950 Civil Defense Act for his authority was improper. They say the governor should have relied on the older Public Health Law that specifically deals with infectious diseases and grants additional powers to local boards of health. If the governor needs more authority to deal with the crisis, the plaintiffs say, he should go to the Legislature and ask for those powers.

There was a lot of legal discussion between the justices and the attorneys representing Baker and the plaintiffs, but the judges at various points seemed genuinely concerned about what would happen on the ground if they sided with the plaintiffs.

“Don’t you have to admit that Gov. Baker has done a pretty darn good job here, especially when you compare him to other states?” asked Justice Elspeth Cypher, who was appointed to the SJC by Baker.

Cypher also worried what would happen if authority for combatting the coronavirus shifted to local boards of health. “Do you really think numerous local boards of health can contain a pandemic that spreads like this?” she asked.

Michael DeGrandis, an attorney with the New Civil Liberties Alliance who is representing the plaintiffs, said he couldn’t answer that question. “That’s not for me to decide. The General Court believes that,” he said, referring to the Public Health Law the Legislature passed in 1909.

Cypher later asked Douglas Martland, an assistant attorney general who is representing Baker, whether he thought local boards of health would be better suited to deal with the crisis. “They cannot provide the coordinated state and local response that is necessary,” Martland said.

The prime legal authority for Baker’s powers is the Civil Defense Act, passed at the beginning of the Cold War. The law allows the governor to declare a state of emergency when the state is threatened by enemy attack, sabotage, riots, fires, floods, earthquakes, droughts, or “other natural causes.”

Martland said the coronavirus definitely arises from a natural cause, but DeGrandis said that interpretation is overly broad and would basically allow the governor to declare a state of emergency under almost any situation. He also pointed out that the Public Health Law was passed by the Legislature to deal with infectious diseases.

Justice Scott Kafker seemed to suggest that the two statutes both could apply, but that the Civil Defense Act seemed better suited to “a pandemic that threatens our entire life.” He added: “It seems to me that the Civil Defense Act is meant for basically when all hell is breaking loose out there….It’s a level of magnitude where these two statutes differ.”

According to the state website, all but one of the previous state of emergency declarations in Massachusetts dealt with storms. The lone exception was a state of emergency declared by Baker to address the Merrimack Valley gas explosions in 2018.

In Massachusetts, the Legislature has not challenged the governor’s legal authority to declare a state of emergency. In fact, lawmakers have passed laws funding some of the governor’s initiatives and in most respects have moved in concert with the governor. Baker argues these actions by lawmakers buttress his case that he is acting within his legal authority.

Cypher echoed Baker’s argument, asking DeGrandis whether the Legislature, through its actions, has effectively delegated authority to the governor.

DeGrandis said no. “The governor has taken control. He’s turned the government upside down,” he said. “At this point the Legislature is left to approve or disapprove of the governor’s policy choices. That’s not how it’s supposed to work. The governor is supposed to execute the policy choices of the Legislature.”

Cypher asked DeGrandis what would happen if the court sided with him and then the Legislature did nothing. DeGrandis responded that public health officials would have to act within the parameters of the Public Health Law or the Legislature would have to step up and take action.

The justices spent nearly 34 minutes questioning DeGrandis and a little over 21 minutes questioning Martland. The questions to Martland tended to be specific in nature, but there was also some skepticism of the governor’s position.

Justice David Lowy, for example, discounted Martland’s claim that there “has been repeated confirmation, ratification, and appropriation by the Legislature of the governor’s actions.”

“We’re dealing with an enormous, enormous delegation of power,” Lowy said.

Lowy said the plaintiffs feel the governor is picking winners and losers and doing so in arbitrary fashion. “It’s just drawing lines with no rational basis,” he said, citing as an example the decision to allow casinos to reopen before arcades. (The governor on Thursday signed a new executive order allowing arcades to open September 17. Casinos opened in mid-July.)

Martland insisted the decision on arcades and casinos was not arbitrary. He said casinos are safer because they are tightly regulated, well-resourced, and occupy new buildings with good ventilation systems. Arcades, by contrast, are less regulated and occupy older buildings where ventilation is sometimes a problem.

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Bruce Mohl

Editor, CommonWealth

About Bruce Mohl

Bruce Mohl is the editor of CommonWealth magazine. Bruce came to CommonWealth from the Boston Globe, where he spent nearly 30 years in a wide variety of positions covering business and politics. He covered the Massachusetts State House and served as the Globe’s State House bureau chief in the late 1980s. He also reported for the Globe’s Spotlight Team, winning a Loeb award in 1992 for coverage of conflicts of interest in the state’s pension system. He served as the Globe’s political editor in 1994 and went on to cover consumer issues for the newspaper. At CommonWealth, Bruce helped launch the magazine’s website and has written about a wide range of issues with a special focus on politics, tax policy, energy, and gambling. Bruce is a graduate of Ohio Wesleyan University and the Fletcher School of Law and Diplomacy at Tufts University. He lives in Dorchester.

About Bruce Mohl

Bruce Mohl is the editor of CommonWealth magazine. Bruce came to CommonWealth from the Boston Globe, where he spent nearly 30 years in a wide variety of positions covering business and politics. He covered the Massachusetts State House and served as the Globe’s State House bureau chief in the late 1980s. He also reported for the Globe’s Spotlight Team, winning a Loeb award in 1992 for coverage of conflicts of interest in the state’s pension system. He served as the Globe’s political editor in 1994 and went on to cover consumer issues for the newspaper. At CommonWealth, Bruce helped launch the magazine’s website and has written about a wide range of issues with a special focus on politics, tax policy, energy, and gambling. Bruce is a graduate of Ohio Wesleyan University and the Fletcher School of Law and Diplomacy at Tufts University. He lives in Dorchester.

Kafker also raised concerns about how the Civil Defense Act has no damages provision that would allow those hurt by the decisions to be compensated in some fashion. “We’re all in this together but some people are suffering more than others,” he said. “There’s no way to correct that. That’s the really difficult part of this.”

Baker was asked about the court case on Thursday at an event in Medford and said he had the authority to declare a state of emergency using the Civil Defense Act. “I do believe that that authority has been there to deal with disasters,” he said. “And I find it hard to believe that anybody wouldn’t consider what’s gone on with COVID to be a disaster that needed to be dealt with.”