Suit at­tacks Baker’s call of coron­avirus emer­gency

Sentinel & Enterprise - - FRONT PAGE - By Colin A. Young

BOSTON » The state’s high­est court will hear ar­gu­ments in Septem­ber in a law­suit brought against Gov. Char­lie Baker chal­leng­ing his author­ity to de­clare a COVID-19 state of emer­gency and to is­sue the emer­gency orders that have shaped life in Mas­sachusetts for the last four months.

Justice Bar­bara Lenk, sit­ting as part of a sin­gle-justice ses­sion, or­dered a law­suit brought by the New Civil Lib­er­ties Al­liance to be trans­ferred to the Supreme Ju­di­cial Court for ar­gu­ments in Septem­ber. The suit re­volves around whether a gov­er­nor can use the pow­ers af­forded un­der the Civil De­fense Act to de­clare an emer­gency around pub­lic health.

“The Gov­er­nor’s orders are in­valid be­cause the COVID-19 pan­demic is not a ‘civil de­fense emer­gency.’ The Civil De­fense Act is a 1950’s-era statute de­signed to pro­tect the Com­mon­wealth from for­eign in­va­sions, armed in­sur­rec­tions, and civil un­rest as­so­ci­ated with nat­u­ral dis­as­ters. It has never be­fore been in­voked for a health emer­gency,” the plain­tiffs said.

“On the other hand, the legislatur­e passed the Pub­lic Health Act ex­plic­itly to em­power health authoritie­s to con­trol and pre­vent trans­mis­sion of in­fec­tious dis­eases dan­ger­ous to pub­lic health. Un­der the Pub­lic Health Act, prin­ci­pal re­spon­si­bil­ity for dis­ease con­trol lies with lo­cal boards of health, not with the Gov­er­nor.”

The plain­tiffs in­clude busi­ness own­ers in Hub­bard­ston, Lex­ing­ton, Burling­ton, and Marl­bor­ough, the pas­tors of churches in West­field and Med­ford, and Ben Haskell, head­mas­ter of Trin­ity Chris­tian Academy in Hyan­nis.

Both the New Civil Lib­er­ties Al­liance and the Baker ad­min­is­tra­tion asked for a sin­gle justice of the SJC to re­view the com­plaint.

“Due to the na­ture of the ques­tions raised, and the mul­ti­ple pend­ing cases in State and Fed­eral courts re­lated to these is­sues of State-wide sig­nif­i­cance, the par­ties’ mo­tion to trans­fer is the most ex­pe­di­tious way to re­solve the ques­tions pre­sented in the pe­ti­tioner’s com­plaint,” Lenk wrote in her or­der.

The gov­er­nor has said that he was mind­ful to not tram­ple upon any­one’s con­sti­tu­tional rights when im­pos­ing virus mit­i­ga­tion mea­sures. For ex­am­ple, Baker has said re­peat­edly that he did not think he had the author­ity to or­der res­i­dents to stay in their homes, and he opted in­stead to ad­vise peo­ple that they would be safer at home.

The Mas­sachusetts Fis­cal Al­liance, which is not a plain­tiff in the suit but sup­ports the ac­tion, cel­e­brated Lenk’s or­der on Tues­day.

“It looks like the plain­tiffs and all those who care about keep­ing state gov­ern­ment ac­count­able will have their day in court — the state’s high­est court. This case is not an at­tack on the Gov­er­nor and makes no judg­ment as to whether his poli­cies are good or bad,” Paul Craney, spokesman for the Fis­cal Al­liance, said. “What this case hopes to clar­ify is whether the Gov­er­nor has the le­gal author­ity to im­pose so many far reach­ing ex­ec­u­tive orders or should he abide by the pro­vi­sions set forth by the Legislatur­e in state’s Pub­lic Health Act.”

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