Petition Will Seek Supreme Court Review Of Baker Pandemic Restrictions

The plaintiffs in an unsuccessful lawsuit that sought to overturn many of Gov. Charlie Baker's executive orders that put business and other gathering restrictions in place during the COVID-19 pandemic are asking the U.S. Supreme Court to consider the case.

The New Civil Liberties Alliance said Monday that it was in the process of filing a petition with the Supreme Court to review the case, which was rejected in December by the state's top court.

In that ruling, the Supreme Judicial Court justices said that state law gave the governor "expansive discretionary powers" in the face of an emergency. The court wrote that the law does include the phrase "other natural causes," and the pandemic fit firmly within that definition.

"We conclude that the [Civil Defense Act] CDA, through the phrase 'other natural causes,' encompasses a health crisis on the level of the COVID-19 pandemic," Justice Elspeth Cypher wrote in the decision.

NCLA attorney Mike DeGrandis, who argued the case in front of the Supreme Judicial Court, 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.

DeGrandis said legislatures are more than capable of responding to public health crises, and governors should not be allowed to act unilaterally. He also said he believes the SJC relied too heavily on the Supreme Court's decision involving religious gatherings in California that gave Gov. Gavin Newsom some latitude in light of the pandemic, and not enough on a superceding decision involving Gov. Andrew Cuomo's limits on religious gathering in New York city hot spots for COVID-19.

DeGrandis acknowledged that it's unlikely the Supreme Court would hear or decide the case before Aug. 1, which is the date Gov. Baker has circled to lift all remaining business and gathering restrictions, but 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 their 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.