Massachusetts: Businesses, with conservative backing, sue Baker to overturn state of emergency orders

June 1, 2020 | By Matt Stout | Boston Globe |

A group of salons, restaurants, and religious organizations, with the backing of a local conservative group, sued Governor Charlie Baker in state court Monday in a bid to overturn the emergency powers he’s wielded during the coronavirus pandemic, comparing them to the authority of a king.

The lawsuit, filed in Worcester County Superior Court, seeks to void Baker’s March 10 state of emergency order, as well as the dozens of orders he’s issued since, including those shuttering businesses, banning large gatherings, and requiring residents to wear face masks in public if they can’t socially distance.

While Baker has faced other lawsuits aimed at his orders, this one marks the most sweeping challenge of the emergency powers he’s used under a 70-year-old Cold War-era law to guide the state through the public health crisis. As of Monday, the state had reported more than 100,000 cases and 7,035 deaths, including probable infections, across Massachusetts.

“These are not the lawful powers of a governor,” according to the lawsuit, which argues that Baker has acted under the “wrong legal authority” while seeking to limit the spread of COVID-19.

“However well-intentioned his motives, by invoking the Civil Defense Act . . . the governor has wrought extensive constitutional damage, and Massachusetts now has a government of men, not laws,” the lawsuit states, referencing the 1950 law under which Baker is acting. “The citizens of the Commonwealth threw off that brand of government once before, under King George III, and they wrote the Massachusetts Constitution to prevent its return.”

Baker’s office did not immediately respond to a request for comment on the lawsuit Monday.

The lawsuit was filed on behalf of 10 plaintiffs — including hair and tanning salon owners, a North End restaurateur, and two church pastors — and by a pair of attorneys: Michael P. DeGrandis, of the New Civil Liberties Alliance; and Danielle Huntley Webb, an attorney and board chair of the 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 counts among its initial donors the Charles Koch Foundation, according to nonprofit filings.

The Fiscal Alliance Foundation acts as a legal assistance arm of the Massachusetts Fiscal Alliance, a Boston-based conservative nonprofit known for shielding its donors, and is supporting the lawsuit, according to spokesman Paul Craney.

In declaring a state of emergency, Baker leaned in part on the authority of the Civil Defense Act, which grants him sweeping authority in the face of enemy attacks, sabotage, riots, fire, floods, or other “natural causes.” It does not specifically cite a pandemic or public health emergency as a trigger, but Baker also cites a separate state law that empowers his public health commissioner to take action in the case of an emergency that “is detrimental to the public health.”

DeGrandis argued Monday that such “police power” should rest with the Legislature and that local boards of health have orders in place to help protect public health amid the pandemic.

The lawsuit, however, does not immediately seek a preliminary injunction or temporary restraining order, two avenues that, if successful, could quickly spur a court order. DeGrandis, in a virtual press conference, also acknowledged there not only are “potential pitfalls” with giving local boards authority, he questioned whether state lawmakers had the political will to legislate the types of far-reaching measures Baker has taken.

“I don’t think legislators like to make tough decisions,” he said.

But he and the lawsuit itself say part of the motivation is to guard against Baker again shuttering businesses should a second surge of infections course through the state, a threat both epidemiologists and Baker himself have warned of.

“If COVID-19 rebounds, or when the next pandemic arises, Governor Baker’s executive overreach must not be repeated by him, nor by his successor,” the lawsuit states.

Carla Agrippino-Gomes, a plaintiff who owns Antico Forno and Terramia Ristorante in the North End, voiced frustration Monday of seeing large-scale protests tear through Boston even as restaurants remain closed without a firm reopening date. She said she and other restaurant owners are prepared to open Friday, and demanded more guidance from Baker.

“Do your job. I want to put an F [word] in the middle of that,” she said at a virtual press conference organized by the Fiscal Alliance Foundation.

Baker has had mixed success in fighting legal challenges to his orders. A state court in April ruled that Baker acted within his authority when he ordered recreational marijuana suppliers and stores to close amid the coronavirus pandemic.

But last month, a federal judge overturned part of his order closing gun shops, ruling that Baker’s decision to shutter them along with thousands of other “nonessential” businesses infringed on people’s Second Amendment rights.

Baker last month also allowed houses of worship to be among the first to reopen in the face of a separate federal lawsuit, which argues that his ban on gatherings of more than 10 people violated freedom of religion protected by the First Amendment. That lawsuit was ultimately rendered moot by his amended order.

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