Gov’s emergency order power questioned

Business owner challenges ‘process’

The state’s highest court is teeing up a lawsuit that challenges whether Gov. Charlie Baker had the lawful authority to execute many of the emergency orders — including those shuttering businesses and requiring face coverings — created amid the pandemic.

The New Civil Liberties Alliance filed the lawsuit in

June in Worcester Superior Court on behalf of outspoken business owner Dawn Desrosiers. The suit challenges Baker’s authority under the Civil Defense Act to declare a state of emergency based on the existence of the public health pandemic.

“We’re not challenging the governor’s policies. The policies may be good. They may be bad. This issue is process,” said NCLA senior counsel Michael P. DeGrandis during a Wednesday conference call.

If the suit is successful, it would invalidate many of the orders Baker has created to address the coronavirus outbreak, some of which have triggered a backlash from the hard-hit small business community.

“The Governor should not be allowed to invoke Cold

War-era laws to rule by decree just because he feels like it,” Paul Diego Craney, a spokesman for the Fiscal Alliance Foundation, said in a statement.

The Massachusetts Fiscal Alliance is not a plaintiff in the suit but supports the action and shares the concerns it has raised for small businesses.

The determination in the suit could serve as precedent for a number of other cases filed in the 120 days since Baker declared a state of emergency, which challenge dozens of the emergency orders enacted by the governor amid the pandemic, DeGrandis said.

“It stands to reason that one of the reasons why I think the governor wants to press this case and move this case forward is because a lot of other cases are stacking up in state and federal court,” DeGrandis said.

Both the plaintiffs and the Baker administration have asked for a single justice of the Supreme Judicial Court to review the complaint. DeGrandis said he expects a hearing in September.

Rather than invoke the Public Health Act, Baker declared his March 10 state of emergency under the Civil Defense Act, something the lawsuit contends is illegal.

“A September ruling would go a long way to clarify Massachusetts law and clarify whether there are limits on the governor’s authority under the Civil Defense Act,” DeGrandis said.