The Civil Defense Act provides authority for Massachusetts Gov. Charlie Baker’s March 10 declaration of a state of emergency and subsequent emergency orders in response to the COVID-19 pandemic, and those actions did not violate the state or federal constitutions, the state’s Supreme Judicial Court has ruled.
The case had been brought by businesses whose operations have been disrupted by the pandemic response, including two hair salons, a tanning salon, a boxing gym, two restaurants, an indoor family entertainment center, and a conference center, along with two houses of worship and their pastors, and the head of a religious academy.
The plaintiffs argued that Baker’s emergency declaration and emergency orders under the CDA are unenforceable, ultra vires actions because the Civil Defense Act vests the governor with specified emergency powers only in the event of “immediate and specific cataclysmic events of limited duration,” which they argue the COVID-19 pandemic is not.
The plaintiffs also argued that the Massachusetts Legislature intended the Public Health Act, G.L.c.111, and not the CDA, to be used to protect Massachusetts residents from “disease dangerous to the public health,” such as COVID-19.
But the SJC agreed with Baker that the plain language of the CDA gives him broad authority in the context of the COVID-19 pandemic, which the PHA does not abridge.
Writing for the court, Justice Elspeth B. Cypher noted that the governor’s power turns on whether the phrase “other natural causes” in §5 of the CDA encompasses a health crisis such as the current pandemic.
“We note first that COVID-19 is naturally caused, as scientists believe it originated from an animal, likely a bat,” Cypher wrote.
Having concluded that COVID-19 qualified as a “natural cause,” the court turned to the interplay between the CDA and PHA and found that, “although it is evident that the PHA was designed to protect Massachusetts residents from, among other things, dangerous diseases, there is nothing to prevent the CDA from supplementing the PHA during times of actual public health emergencies, such as the COVID-19 pandemic.”
The authority granted to the governor in the CDA also meant that his emergency orders do not interfere with the functions of the Legislature and do not violate the separation of powers under Article 30, as the plaintiffs had contended, the court concluded.
The court also rejected the plaintiffs’ argument that the emergency orders violate their federal and state constitutional rights to procedural or substantive due process, or assembly.
With respect to due process, the SJC took its measuring stick for Baker’s orders from Chief Justice John Roberts’ concurrence in the U.S. Supreme Court’s decision earlier this year in South Bay United Pentecostal Church v. Newsom, in which the California governor’s limits on attendance at places of worship was challenged.
Roberts had written that elected officials must be given “especially broad” latitude when they “undertake to act in areas fraught with medical and scientific uncertainties,” and “should not be subject to second-guessing by an ‘unelected [State] judiciary,’ which lacks the background, competence, and expertise to assess public health and is not accountable to the people.”
The governor had not, as the plaintiffs contended, “dispensed with the law” by issuing his emergency orders, the court found.
“The Governor is not, as the plaintiffs argue, ‘donn[ing] the mantle and crown’ to pick winners and losers; he is making difficult decisions about which types of businesses are ‘essential’ to provide people with the services needed to live and which types of businesses are more conducive to spreading COVID-19, and basing his emergency orders on those determinations,” Cypher wrote.
The court also subjected the emergency orders to rational basis review, rather than strict scrutiny, because in the court’s estimation the orders do not burden the plaintiffs’ fundamental rights.
As for the right to free assembly under Article 19 of the Massachusetts Declaration of Rights and the First Amendment, the SJC found that the emergency orders are content-neutral, valid restrictions on time, place and manner.
The emergency orders also “leave open alternative channels of communication.”
“The orders limit the number of people allowed at most gatherings, but do not ban all in-person assembly, and the plaintiffs have alternative ways to assemble, such as through virtual assembly,” Cypher wrote.
The SJC’s 41-page decision in Desrosiers, et al. v. The Governor.