Pub owner’s fight against Lamont’s closure order questioned by CT Supreme Court
A skeptical Connecticut Supreme Court on Friday fired a string of questions at the lawyer for a Milford pub owner who claims that Gov. Ned Lamont exceeded his constitutional authority in ordering the nearly ninemonth closure of bars in the coronavirus pandemic.
Attorney Jonathan J. Klein’s attempt to override Gov. Ned Lamont’s emergency powers focused on the interpretation of the governor’s role under the Connecticut constitution and its relation to law during emergencies. He charged that Lamont improperly took over the job of the General Assembly in the lengthy shutdown when he assumed civil preparedness and public health emergency powers back in March.
Led by Chief Justice Richard Robinson in a 75-minute virtual hearing held on the court’s Youtube channel, the high court had sharp questions for both lawyers, but seemed to spend most of their focus poking holes in the arguments of Klein, representing Kristine Casey, owner of Casey’s Irish Pub on Bridgeport Avenue, who has lost thousands of dollars in the forced shutdown.
“The governor does not have the authority under the state Constitution to issue executive orders to force the closure of my client’s pub,” Klein charged, also interpreting state law. “The contagion of disease is not within the scope of the term serious disaster, as that term is used in the statute.” He also charged that Lamont has violated the separation of powers between the legislature and the executive branch under the Constitution.
“Whatever he thinks is right is what goes, so he can rule by fiat,” Klein said.
“It has to be reasonably necessary to protect health,” Associate Justice Steven Ecker interrupted. “If it’s not, then it can be challenged.”
“One of the failings of this statute is that it doesn’t allow the legislature to override the governor, even challenge the governor,” Klein replied. “The governor can do whatever he wants, whatever he thinks is best. The governor is essentially playing god under this statute.”
Robinson said the legislature could respond if the governor oversteps his authority. “They could bring a lawsuit, couldn’t they?” Robinson asked. “Or one of their members?”
Also questioning Klein over the perceived difference of phrases such as “major disaster” and “serious disaster” and limits on the governor’s power were Associate Justices Christine Keller and Maria Kahn.
“The legislature I believe since March has gone into special session at least twice, and they haven’t done anything about these orders,” Keller noted. “Can we view that as their acquiescence in what the governor’s been doing?”
“I view that as a dereliction of duty on their part, not an acquiescence,” Klein responded. The General Assembly abandoned the Capitol after its March 11 session and did not return until special sessions during the summertime with unusual sanitary protocols and limited in-person appearances in both the House of Representatives and the Senate.
Klein also argued that the state civil preparedness law that grants the governor emergency powers, is unconstitutional. A lower court decision, however, held that both the Constitution and state laws give the governor expansive authority to protect the state in a public-health emergency in the ruling that Klein is challenging. A ruling from the high court is expected sometime in 2021.
“It just seems to me that we have had, yesterday alone, more Americans dying of COVID than died in 9/11 and to date more Americans have died than died in battle in World War II over four years, in nine months,” said Associate Justice Andrew J. McDonald. “It’s kind of hard to get your head wrapped around that not being a serious disaster.”
“This is a serious disaster, no matter how we try to define that term,” Assistant Attorney General Philip Miller said, noting the state’s death toll, during his oral argument in defense of Lamont. “If you look at projections, it looks like there will be hundreds if not thousands more before this pandemic’s over. A hundred and forty thousand residents have already contracted the disease. “I mean, we can’t even be together today to have this argument. I mean, COVID-19 is a serious disaster.”
“You could imagine a really problematic situation where there’s a disaster that’s declared and then the governor just doesn’t end it,” Ecker hypothesized. “Does that aspect of this statute make it different from what other states have deemed to be constitutional, like Massachusetts, and should that be of concern to us?”
“This is an extraordinary situation,” Miller replied. “I think the breadth of the powers are sort of because of the breadth of this situation. What I would say is there are sufficient checks on the governor. The governor can only act when there is a serious disaster. I pray a day comes when COVID-19 is no longer a serious disaster. And that if the governor continues to attempt to extend powers after that, then that is certainly something the courts will be able to be involved in.”
Miller stressed that the plaintiffs’ case does not rely on public-health guidance, particularly at a time when many doctors are calling for bars to remain closed and even any indoor dining to be halted during the current surge of the coronavirus.
“So clearly the actions taken in this case were directly related to public health,” Miller said.