Lower court sets up showdown over Lamont’s powers
A Superior Court judge has ruled Gov. Ned Lamont’s executive orders issued in response to the COVID-19 pandemic require some legislative oversight, although the decision will have no immediate effect on the state’s rules regarding things like mask wearing requirements and limits on restaurant crowds.
Supwerior Court Judge Thomas Moukawsher’s ruling instead sets up another battle in the state Supreme Court over Lamont’s emergency powers.
Moukawsher, who last week was appointed to another eight-year term by the General Assembly, punted the issue to the high court on whether Lamont and former Education Commissioner Miguel Cardona exceeded their authority in ordering that masks be worn in schools during the pandemic.
In a colorful, sometimes poetic 36-page ruling issued on Monday that name checks Roman emperors and 17th century English revolutionaries, Moukawsher said that the recent Supreme Court rejection of a Milford bar owner’s challenge to Lamont’s closure order needs further clarification in the case of a group of conservatives — the CT Freedom Alliance LLC — opposed to the governor’s mask mandate.
It leaves open the question that the alliance and
individual plaintiffs with children in public school, represented by celebrity attorney Norm Pattis, want answered: whether Lamont has the power to order mask wearing in school, and whether the General Assembly tacitly agreed. In response to the ruling, Pattis called Lamont’s prolonged emergency powers a “coup.”
In multiple pages of European and American history, citing Oliver Cromwell’s revolutionary rise in England, the Fundamental Orders in Connecticut and even the flowering and fall of the Roman Empire thanks to Julius and his nephew Augustus Ceasar, Moukawsher stressed the importance of the separation of powers.
“But within a single lifetime Romans bade farewell to their Republic, embraced an enlightened despot and when he died, unguarded by law the Romans faced two tyrants, under whom freedom and the public weal waxed or waned at whim or will,” Moukawsher alliteratively wrote.
But the judge realized it’s not for his lower court to ultimately decide where Lamont’s power may end in the continuing publichealth crisis linked to the deaths of 7,739 state residents.
“Nothing in this opinion suggests that the executive branch has done the wrong thing by requiring masks to be worn in school,” Moukawsher wrote. “It suggests only that that the right thing must be done in the right way constitutionally. In fact, this opinion concludes from all the evidence that can reasonably be believed that the school mask mandate was a rational response to the COVID-19 crisis.”
Moukawsher said current law, awaiting clarification from the state Supreme Court, indicates that a governor’s emergency powers end after six months, unless the General Assembly approves it; and the executive orders themselves must be approved by the General Assembly, with an expiration date.
While claimed as a victory by conservatives, Moukawsher stressed that the decision was not a declarative ruling.
“It’s worth repeating what this decision does not say,” he wrote. “It does not order anything to be done now. The Supreme Court will decide if such is to be the case. It does not suggest or decide that any of the governor’s actions to date are invalid in any way.”
The Freedom Alliance, on its website, admitted that the judge did not provide them the ruling they wanted, but “it contains a strong rebuke of the notion that the Governor can exercise unilateral executive authority, even during a pandemic, that continues indefinitely and without legislative oversight.”
On the alliance website, Pattis, said he will ask permission of the Supreme Court for a quick appeal.
“We are delighted by most of Judge Moukawsher’s decision,” Pattis wrote. “He understood the significance of what we argued: There is no public health exception to the rule of law. The legislature needs to avoid the thralldom of one-party governance and serve its constitutionally appointed role. COVID-19 is a terrible virus; it ought not also be the instrument of a coup emboldening the governor and legislature to avoid their constitutional duties,” Pattis wrote.
Republicans in the General Assembly, critical of Lamont’s now year-long emergency powers, which sidelined state lawmakers from early March until special sessions last summer and fall, claimed vindication by the ruling.
“While much of the state’s public health response was rational and took necessary action, these are decisions that should have never been made by only one branch of government without any input from lawmakers,” said Senate Minority Leader Kevin Kelly, R-Stratford. “Our government was not designed to be controlled by one person. We are a government of the people, by the people and for the people. Yet over the last year Connecticut Democrats were perfectly fine ceding unprecedented authority to one person again and again, setting a dangerous precedent.”
Max Reiss, Lamont’s director of communications, said the opinion hinges on another, future Supreme Court case, after the high court ruled in favor of the governor’s closure of bars because of the likelihood of community COVID spread.
“This is just his opinion that the legislature has to have more say,” Reiss said in a phone interview. “This doesn’t change anything and the mask mandate remains in place. The administration awaits a final decision from the Connecticut Supreme Court.”
In a partial ruling on December 31, a Milford pub owner lost a challenge to Lamont’s order that her bar remain closed in the pandemic. An expansion of the decision is expected.
“COVID-19 is a terrible virus; it ought not also be the instrument of a coup emboldening the governor and legislature to avoid their constitutional duties.”
Norm Pattis, attorney