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Petitioners seek U.S. Supreme Court review of Baker orders



Gov. Charlie Baker looked down and fiddled with his rubber bracelets Tuesday after announcing additional restrictions and economic reopening rollbacks in the midst of a troubling COVID-19 surge. [Sam Doran/SHNS]

By Matt Murphy
State House News Service

Gov. Charlie Charlie Baker is less than three months away from lifting all remaining COVID-19 restrictions, but critics who believe the Republican governor overstepped his authority are asking the U.S. Supreme Court to declare Baker’s actions to date a violation of the Constitution.

The plaintiffs unsuccessfully sued Baker last summer attempting to overturn many of his executive orders that put business and other gathering restrictions in place during the COVID-19 pandemic, but lost that case in December in the state’s highest court.

Now the New Civil Liberties Alliance, on behalf of a group of small business owners, religious leaders and a private school administrator, is asking the U.S. Supreme Court to hear their case.

“Legislatures are there. They’re capable of taking on hearings, taking on information and deciding what sort of remedial measures the community should take at large, instead of having governors make law by executive decree,” said Mike DeGrandis, the NCLA attorney who argued the case before the SJC.

While it’s unlikely the Supreme Court would act in time to disrupt Gov. Baker’s current reopening plans, the lawyers and advocates involved say the case still has value in making sure Baker or future governors don’t similarly use public health to wield expansive executive authority.

DeGrandis said he believes the state’s top court applied “exceedingly lax” standards when it evaluated Baker’s restrictions on the right to assemble, and well as the plaintiffs’ due process rights. He also said he believes the SJC relied too heavily on the Supreme Court’s early-pandemic decision involving religious gatherings in California that gave Gov. Gavin Newsom some latitude in light of the pandemic.

DeGrandis said the court’s superseding decision that blocked New York Gov. Andrew Cuomo from limiting the size of religious gatherings in certain neighborhoods of New York City where the virus’s infection rate was rising was more applicable to his case.

In upholding Baker’s authority under the Civil Defense Act, the state Supreme Judicial Court ruled ruled in December that the governor’s executive orders in Massachusetts were widely applicable, and not targeted at specific types of businesses or activities, although certain businesses and workers were designated as “essential.”

The justices also noted that nothing prevented the Legislature from intervening or passing laws over the course of the pandemic to exert their own authority over the state’s pandemic response.

“I think we’ve tried pretty hard to be balanced and to be as reasonable and fair as we could be in this very difficult time and very difficult circumstances and I appreciate the SJC’s decision with respect to those issues,” Baker said after the December SJC decision was issued.

The filing of the petition asking the Supreme Court to hear NCLA’s case came the same day a number of business restrictions and capacity limits were lifted, with amusement parks and road races among the activities allowed to resume and large venues like Fenway Park and TD Garden permitted to increase fan capacity to 25 percent.

Baker has laid out a timeline that will see all remaining restrictions removed by Aug. 1, if not sooner, as long as health metrics related to the virus, including new cases and hospitalizations, continue to improve. The state over the weekend passed the milestone of 4 million first vaccine doses administered, with 73 percent of all adults and 63 percent of all residents in Massachusetts having received at least one dose.

Some employers and business lobbying groups, however, would like to see the state move faster with neighboring states like Connecticut and Rhode Island moving more quickly to fully reopen by Memorial Day at the latest.

DeGrandis acknowledged that it’s unlikely the Supreme Court would hear or decide the case before Aug 1, but he said the governor could still choose to leave the public health emergency declaration in place in case the virus surges again.

“You have this sword of Damocles hanging over your head,” DeGrandis said.

Paul Craney, a spokesman for the Massachusetts Fiscal Alliance Foundation, said he also hopes the petition accelerates the reopening timeline by causing legislative leaders and the governor’s office to reconsider the current track they’re on.

The Fiscal Alliance Foundation has supported the NCLA in its legal challenge of Baker’s emergency orders.

“We hope the governor and the folks that influence the governor, various State House leaders, will look at this and realize as the restrictions wind down they’ll put in place some limitations (on the governor) so this doesn’t happen again,” Craney said.

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