-: SJC-12983.
Dawn Derosiers and Others
v. The Governor of the Commonwealth.
-: Mr. DeGrandis?
-: Yes, thank you, your honor.
May it please the court, I'm Michael DeGrandis,
with the New Civil Liberties Alliance,
appearing on behalf of the petitioners in this case.
Your honors, the questions presented here
can be succinctly restated as a simple proposition.
May Governor Baker ignore a health statute
that expressly provides for the containment
of a pandemic, of epidemics, of infectious disease,
and instead exercise the police power as he sees fit
pursuant to a civil defense statute.
The answer to that question has to be, no.
It has to be no if Article 30,
Separation of Powers means anything at all,
and if the Massachusetts government
is the Republican form of government
guaranteed to its citizens
by the United States Constitution.
The Civil Defense Act makes no mention of disease
and no disease, no pandemic, has ever triggered
a Civil Defense Act state of emergency.
All prior states of emergency have been related
to military preparedness, weather related crises,
and one instance of a natural gas explosion
that set fire to at least three towns.
The public health act-
-: If I could interrupt you for a moment.
Michael: Sure.
-: I understand your statutory construction argument
and argument about the general
being limited by the specific,
but in the Civil Defense Act legislation,
it specifically references protecting the public health.
And when we look at other natural causes
as a listed concern,
and we see that one of the purposes of the Civil Defense Act
is protecting the public health,
why wouldn't that leave us with
a reasonable statutory construction
that the governor's acts are within the statute?
-: There are at least, I would say, three reasons why
that wouldn't be a reasonable interpretation.
First and foremost,
we have the canon of ejusdem generis,
which requires that general phrase,
"other natural causes",
to be limited to the preceding specific phrases,
"fires, floods, and earthquakes".
There also would be no limiting principle whatsoever
if every natural occurrence,
because everyone agrees here that all manmade calamities,
war, sabotage, terrorism,
all of those fall under the Civil Defense Act.
But if other natural causes means
every natural occurrence of any sort,
then there's absolutely no limiting principle.
When can't a governor declare
a civil defense state of emergency?
-: Well, this is not every situation.
This is a, obviously, a pandemic,
where the spread can be from asymptomatic people.
And I guess the issue is,
how much weight can the other natural causes hold?
I understand your ejusdem generis argument,
but that's a aid to statutory construction,
that's not dispositive.
-: Well, and I think it brings us,
your question brings us to the third point, which is,
if you read the Civil Defense Act
other natural causes to also mean disease and pandemic,
though those aren't named in the Act,
you're going to make the Public Health Act superfluous.
The Public Health Act is directly on point with this.
The Public Health Act, we say in our briefing,
predates the Civil Defense Act by at least 50 years.
But in fact, the elements of the Public Health Act
have been in place for hundreds of years.
This is the one place to go to know
what the legislature intended.
And what it intended to do
was localize disease control mitigation.
And also keep in mind too, this doesn't,
in invalidating the Civil Defense Act state of emergency-
-: The local boards, under the Public Health Act,
local boards are going to be able to deal with this issue?
The legislatures, they're there every day.
They've been enacting legislation
under the understanding that the Civil Defense Act
is the means through which this is going to be addressed.
And now we're going to look to the Public Health Act
and have local boards being able to deal with the pandemic?
-: Well, the legislature may be making a mistake
and taking the governor's lead in mistakenly believing
that the Civil Defense Act applies.
The legislature can easily correct its course
if it disagrees with the legislature in the early 1900s
that put forth the Public Health Act.
So local boards of health,
if they're actually enabled to do their jobs,
they're the ones on the ground.
They've been relegated to mere health police
by the governor's orders.
If they're allowed to actually interact
the way the Public Health Act intended them to,
that is in close concert with each other
because they do form their own coalitions
or own groups in neighboring towns,
and getting advice and information and guidance
from the Commonwealth's Department of Public Health,
this is the past set forth by the general court.
If the general court wants to adapt that,
if there are unique dynamics to this particular disease,
then the general court can make those changes.
There's nothing about invalidating
the civil defense state of emergency
that would put the general court on its heels,
it's already spoken.
And if it wants to adapt, it can readily adapt.
-: Kafker, go ahead. -: No, no, go ahead.
-: Counsel, when you say they can adapt, they can adapt,
certainly they could if they thought
the governor was misinterpreting the Civil Defense Act.
Could not they act now and take care of that?
-: They certainly could.
They just haven't done it.
-: And you think that's because they're mistaken?
-: That's right, they are mistaken.
And there's no reason why the petitioners
should have to wait around for the legislature-
-: All right, well let's talk about that for a minute.
One thing is, let me ask you,
when you say the petitioner's waiting around,
I understand that this pandemic
and the restrictions that have been placed
have taken an extreme toll on the people of Massachusetts.
Some of them have borne the burden disproportionately
in the form of either death or longterm illness,
job loss, business loss.
Some of the people you're representing
would fall into that category.
And some have borne a greater burden
as essential workers or as Black and Brown people
who often have the double burden
of being the essential workers.
Families have been separated.
I understand all of that.
But bearing in mind, bearing in mind all of that,
don't you have to admit that Governor Baker's
done a pretty darn good job here?
Especially when you compare him to the other states?
-: Whether he's done a good or bad job,
whether his policies are right or wrong, isn't relevant.
The ultimate question as to whether a disease
is a civil defense state of emergency,
or to the question as to whether he can exercise
the general courts police power by issuing his orders.
-: Related to that, if the legislature did not think he was,
they could amend that, but you say he's mistaken.
Would you be happier if, say,
they amended the statute to include the word pandemic?
Would that be okay?
-: If the legislature amended the statute
to include pandemic, that would probably be a signal
that the legislature meant for the Civil Defense Act
to supersede the Public Health Act in these circumstances.
So, yes, but it doesn't provide for that now.
-: Okay, and one other question on that front,
one of your other arguments is about duration.
That floods, fires, even the gas explosion,
was of a limited duration
and that this could go on and on and on and on.
What if some of those natural disasters did take,
say nine months, maybe we have a nine month forest fire,
or we have a chemical explosion that leaves damage.
Would they be out?
Would we be out of luck, too?
Would we have to wait for the legislature
to take control of the situation?
-: Well, I think the issue there,
well certainly those examples
would definitely fit within the Civil Defense Act.
-: But they'd still be of a long duration
and you stay things of a long duration are not contemplated.
-: Things have a long duration, that is,
let me try to rephrase it a little bit.
It's about the impossibility
or the substantial impracticality
of the legislature being able to meet.
This is supposed to be a bridge.
Emergency powers are a bridge from one end to the other
to get Massachusetts through crises,
such as the one that you're raising here hypothetically.
-: And so how long is a reasonable amount of time
for an emergency?
-: Certainly by a case by case basis.
I don't think you can put a definitive time on it.
-: All right, now, one other thing
and then I'll turn this over to my colleagues.
Well, two things.
I think Justice Lowy asked you this,
do you really think that numerous local health boards
can control a pandemic that spreads like this?
-: That's not for me to decide.
The general court believes that.
And the general believed that,
including smallpox and all other diseases.
-: So you're not going to register on that
because that's not within your territory, is that correct?
-: I'm sorry?
-: You're not going to tell,
you won't say whether you think they could do it
because that's not within your authority
to make that judgment.
-: It's not also not within my competence.
I'm not a healthcare professional
like the local boards of health
that consist of healthcare providers.
-: And then I have one more question and I'll be finished.
And that is that, we're a Commonwealth.
And when that's defined,
it means public welfare, general advantage.
And that dates way back to the 15th century.
There's all kinds of restrictions we endure
gladly for the common good.
Traffic laws, you have to wear clothes,
regulations on certain kinds of business.
We don't have total freedom
so that we can be protected from one another.
Doesn't this pandemic provide
a really good example of why that is?
That some people have to put up
with some restrictions for the greater good?
-: Oh, absolutely.
And let me make it perfectly clear
if I haven't made it clear yet,
the petitioners have been doing their part,
they will always do their part.
They have abided by the governor's orders,
as best as they could understand the governor's orders.
And will continue to do so as long as this court
decides that they are in fact lawful orders.
-: They just want it to come from the legislature?
-: This is an issue of process and what is,
what is the character of Massachusetts government?
Is it a government of laws or a government of men?
That's the key question here.
-: We have a question from Justice Kafker
and then I believe Justice Lenk after Justice Kafker.
-: So I'm trying,
I've read both statutes carefully at this point
so I'm trying to understand.
If we disagree with you
that the pandemic is a natural cause,
were all the governor's actions then justified?
Again, I understand you disagree with that point,
but if we felt that the pandemic is a natural cause,
did he exercise his powers properly?
-: Well, so in that circumstance,
I think there are still problems
with a number of the orders.
It wouldn't be all of the orders.
So if this is not a civil defense emergency,
all of the orders fail.
If it is a civil defense emergency, many of the orders fail,
and we have a chart, a graph, attached to our reply brief
to identify those where the governor
has unlawfully dispensed with the law
and violated due process
and where he has violated the right to assembly.
-: Give me one example.
I'm just trying to understand.
Again, I understand-
Michael: Go ahead.
-: If it is a natural cause,
give me one example where he's exceeded his power.
-: I think one example that we used,
I was just looking for one here on my screen.
I don't see it.
But one we used in the briefing was,
I believe it's Order 45, the travel ban.
The Public Health Act clearly states
that border towns local boards of health
can prevent travelers coming
from out-of-state infected areas
from traveling through Massachusetts.
They can even get a warrant to forcibly quarantine
or remove that person from Massachusetts.
And so when Governor Baker says,
no, no, no, no, now the Civil Defense Act,
I've got the power, he's obviously supplanting
the legislative will that it would be
the local boards of health that will control that.
And again, they are working with the state on this thing.
It's not that they're completely independent.
-: Like to switch to the other statute for a second.
So again, the powers here,
there are 294 towns and 57 cities in Massachusetts.
So your view is that we've got all
of these different actors dealing
with a public health crisis,
and that's what is meant to be occurring here?
Is that-
-: With coordination.
I think the Public Health Act is clear
that all of this must be coordinated
through the Commissioner of Public Health.
Indeed, Commissioner Burrell has been doing that.
The problem-
-: So if the commissioner were doing
what the governor is doing here under the Public Health Act,
could the commissioner do all of that?
-: The commissioner couldn't do all of that.
The commissioner could do much of it.
-: What could the governor do
that the commissioner cannot do under your view?
-: The commissioner couldn't suspend the law.
So the Civil Defense Act allows for suspension,
which is different from dispensation with the law,
but suspension of the law if this
is a legitimate civil defense emergency.
The governor, take something different
like a hurricane comes through.
The governor can suspend the law and say,
okay, all businesses, so everyone's treated equally,
all businesses, all churches, all schools,
everything is closed until this emergency is over.
That's not a power that Commissioner Burrell would have
with Governor Baker's public health emergency.
That's different.
-: Could the commissioner shut non-essential businesses
under your view under the Public Health Act?
-: No, I don't believe the commissioner could shut down
non-essential businesses because the commissioner
wouldn't have the authority to identify
what businesses are essential or not.
I think the commissioner could perhaps provide guidance
to local boards of health for occupancy standards,
keep six feet away,
in stores people should be wearing masks,
and those sorts of things.
Commissioner Burrell has also allowed
for compounding of hand sanitizer in pharmacies.
This is the ordinary course of things
when using the Public Health Act
to protect people from infectious disease.
-: My last question is trying to distinguish
between these two Acts.
It seems to me that the Civil Defense Act is meant
for basically when all hell's breaking loose out there.
And the Public Health Act is dealing with,
again, we have health problems constantly,
we have disease outbreaks constantly,
but it's a level of magnitude
where these two statutes differ.
Is that not correct?
-: I think it's correct
that there is an element of magnitude to these
since the Civil Defense Act is all encompassing.
Governor makes it clear in his briefing,
and in that sense, he's correct
that he has a tremendous amount of power,
not the power to do anything,
not the power to dispense with the law,
not the power to, obviously, violate Constitutional rights,
but he does have a lot of power.
And that's because the statute itself
contemplates a very real cataclysm.
And that's entirely different from the Public Health Act
where the Public Health Act contemplates that yes,
there will be epidemics, there are ways to control these
and still look out for people's civil liberties.
There is a way to do this, and to do it simultaneously.
-: Justice Lenk, I believe, has a question.
-: I do.
I wanted to ask you about legislative history
as each of these statutes.
Do you have anything that you can offer
in terms of our statutes?
And also in terms of the statutes for the states
and decisions in this regard?
I'm sure that this is not the only challenge
that your organization has brought.
Or organizations like yours have brought.
So could you tell me what's going on in other states
and what the results have been there?
-: Sure.
There are very few states that have the same dynamic
of a Civil Defense Act and a Public Health Act
that are competing.
As a matter of fact, just the other day,
there was an argument before the Michigan Supreme Court,
in which the argument really centered
around two separate emergency Acts,
and then the interplay with the Public Health Act.
The difference was one of those emergency acts
allowed the governor to act
in the event of infectious disease.
So the dynamic was a bit different
because there was true overlap
between those statutes.
We've seen in,
I think it's important to bring up the McCarthy case.
McCarthy against Baker, where,
I believe it was District Court Judge Woodlock
had ruled that Governor Baker's orders closing a gun shops
was unconstitutional because it wasn't related
to the larger needs of protecting in a pandemic.
There are a number of other states
that have basically given away the farm.
Rhode Island is a good example.
Rhode Island has a Military Defense Act
that allows a governor to, similar to Governor Baker,
establish a civil defense state of emergency.
But in that Act, the legislature
had included the word disease,
had included pandemic, or I should say epidemics,
but of course that includes pandemics in it as well.
And so it's a bit of a hodgepodge across the country.
And so it varies depending on where you go.
As far as your question regarding statutory history,
certainly the Civil Defense Act,
having been enacted in 1950,
was really the product of prior war acts
and military preparation during the war.
And in fact there is the one case that we cite,
I can't remember the name of it off the top of my head,
where, oh, actually it wasn't a case.
It was an Attorney General's opinion
that explained that the governor,
under the prior war act,
may have the authority to build a bridge
to help the war effort in World War II,
but the governor wasn't allowed to determine
what the scope of that was, what was an emergency.
He knew that the emergency was World War II.
As far as the Public Health Act is concerned,
as I mentioned a few moments ago,
this dates back at least 50 years
in the form at which we see it today.
But it goes back hundreds of years.
Massachusetts has dealt with smallpox,
has dealt with a number of diseases.
-: Not pursuant that statute, you're saying?
Not pursuant to the statute that they built it with,
but it hasn't been pursuant to the statute
because the statute was enacted only 50 years ago you said.
Right?
-: I'm afraid I don't understand.
-: The Civil Defense Act.
When was the Civil Defense Act enacted?
-: 1950. -: That's 1950.
-: When was the other one enacted?
-: Well about, it depends on how you measure it,
but about 1903 to 1909.
And it really dates back to the 1800s.
-: You have a statute that dates back to the 1800s?
-: There are provisions that have been adapted
and modified back to the 1800s to bring it up to,
that's why I choose to say it was about 1909,
because that's the modern approach that we see
and how it was codified in Massachusetts general laws.
-: You see these statutes as being
in conflict with each other
or one being narrower or broader than the other, or what?
-: Only the governor's interpretation here
brings them into disharmony.
Otherwise they're perfectly harmonized.
The Civil Defense Act,
there are only seven triggering events,
seven triggering cataclysms.
Whereas the Public Health Act is a general law
meant to protect Massachusetts health
and safety at all times.
Which is why we have people,
healthcare professionals on the ground,
in their communities,
who understand their community's needs best of all,
and who can react to changing environments in real time.
Instead of having to wait the delay of a,
certainly a single person, the governor, trying to adapt
as a dynamic disease progresses through society.
-: Justice Cypher?
-: Yeah, I just have a few more followup questions
after listening to some of your answers.
You spoke, I think it was an answer
to Justice Kafker's question, or maybe it was Justice Lenk,
about Rhode Island and you were comparing their statute.
And it sounds like their statute is broader than ours.
Is that right?
-: That's right, they had amended it.
I forget exactly when, a handful of years ago,
I think within the last five years or so, and they-
-: And it includes disease?
-: Include disease, right.
It did not-
-: And in response to that,
you referred to that as giving away the farm,
can you explain what that means.
-: In other words, I would question whether any legislature
in any Republican form of government
with any semblance of separation of powers
can divest itself of its core legislative responsibility
to legislate the police power.
The health, safety, welfare-
-: So actually, the problem then
is not that the statute that we have doesn't say disease,
it's that it's a delegation of police power
that's too much in your mind.
-: It's both, this statute doesn't say disease.
And even if it did-
-: Even if it did it'd be too much.
All right, now suppose we agree with you,
suppose we say, you know what, you're right.
This is the legislature's prerogative.
And then they don't do anything.
What happens then?
-: Well, then it seems that the legislature
would be communicating that, hey, we like what the,
I think a hundred and I forget which legislature,
128th or whatever it was,
we like what the legislatures had done.
And by the way, consistently amend
the Public Health Act throughout time.
-: Going back to that then,
the Attorney General, General Healey's office,
has argued the legislature has demonstrated
its approval of the governor's interpretation of the CDA
by funding the initiatives and by not curtailing the power.
Isn't that the same thing, point you just made?
-: I think that's related to the ratification argument
and it's not, well,
maybe I misunderstand the question.
So if the argument is the legislature
has indicated its approval and,
that's not the role of the legislature, the legislature,
and by the way-
-: It's their role to delegate
and they can decide what they mean by a statute, right?
-: They certainly can.
And this court has been clear that the delegation
must be limited to filling in details.
It can't be the establishing of policy.
-: Taking- -: All right,
and so if the legislature thought
that the governor wasn't filling in the details right,
wouldn't they do something?
-: Well, I would like to think that they would do something,
but they might not do anything.
The governor has taken control
and he's turned the government upside down.
At this point, the legislature is left
to approve or disapprove of the governor's policy choices.
That's not how it's supposed to work.
The governor is merely supposed
to execute the policy choices of legislature.
And for the legislature to make a change,
the legislature would also have
to have a veto proof majority in order to do so.
That is standing the government on its head.
That's not a Republican form of government.
-: I think I understand your argument.
-: I think we have a question from Justice Lowy
then Justice Kafker.
-: Thank you Justice Gaziano.
I just want to turn to the Constitutional issues
for a moment.
And obviously we're looking at Jacobson versus Massachusetts
and where, in that situation,
one of the points that you make is that the smallpox vaccine
back in 1905 was pursuant to legislation.
And here the governor is acting,
you say, without legislative authority.
And so that's a distinction from Jacobson.
But in South Bay Pentecostal Church
with Chief Justice Roberts's concurrence,
when he was looking at the Constitutional issue
involving a limitation on how many people
could worship at the church,
he was addressing an executive ward.
So if we're going to look at legislation executive order,
here, we have a situation we are at best,
you're saying that the governor is acting
beyond the delegation of the Civil Defense Act.
So a long way of saying,
how can you put so much weight
on your Constitutional analysis in Jacobson
and reconcile with Chief Justice Roberts's concurrence?
-: Well, because it's still,
the governor's argument that there is some
lesser rights available to people
during time of pandemic is simply wrong.
And so I think the way we reconcile Jacobson
with Chief Justice Roberts's opinion on the matter
is that Jacobson still required the government
to meet some sort of level of Constitutional protections.
There's got to be some indicia
of defense of civil liberties available.
And so it doesn't necessarily mean that
in having due process there must be a hearing
where someone may be vocally heard,
but there's got to be some sort of process here.
I don't think, unless I don't remember
the Chief Justice Roberts opinion correctly,
there wasn't an issue where the governor was simply,
had his own counsel,
and the executive then issued an order
and that there was no process whatsoever
to seek reclassification.
-: So I understand.
I'm not sure I agree with you,
but I understand your procedural due process argument
in that regard.
I understand, and maybe we'll have time to get to it,
but I'm not talking about procedural due process analysis.
I'm talking about the substantive due process analysis
and looking at whether it's strict scrutiny,
or whether it's rational basis.
We see that Jacobson was in
perhaps similar circumstances, okay,
and you've got your argument to differentiate
Jacobson involving, well that's the governor acting
as opposed to a legislative mandate.
And what I'm saying is in Pentecostal Church,
Chief Justice Roberts's concurrence is an executive order.
So I'm not asking it all in this question
about procedural due process.
-: Okay, I'm sorry, I misunderstood.
So Chief Justice Roberts wasn't examining Article 10
of the Declaration of Rights that requires standing law,
it says that only standing law can regulate
and burden due process rights.
And so Governor Baker's orders
can't be considered standing law.
Even Governor Baker wouldn't argue
that they are standing law.
They are executive orders.
And because they're executive orders,
and again, they don't have any
of the features of due process
that you'd expect with a standing law,
we don't have the confidence,
unlike a standing law where I,
or any one of the petitioners
can reach out to a legislator to try to influence law.
Whether that works or not,
at least we understand where that law comes from.
And so perhaps in those circumstances,
substantive due process deserves lesser scrutiny.
Perhaps in those circumstances.
But there's been absolutely no process here whatsoever
similar to that, similar to the creation of a standing law.
And that's ultimately the problem.
And ultimately why I think that Governor Baker
has to be held to a strict scrutiny standard.
-: Justice Kafker?
-: Again, it all assumes that the legislature
doesn't think the pandemic is a natural cause, right?
Because the legislature,
if it does think the pandemic is a natural cause
has expressly authorized the governor to act.
Also, it reserves in Section 22,
the ability to withdraw the power,
and it's not done that.
It also has it's continuous ability to pass laws,
which it's done for the elections
and other things during the crisis.
So again, doesn't this all hinge
on the fact that you don't think a pandemic
is a natural cause under the statute?
Otherwise the governor's actions
are clearly provided with legislative authorization
and also, as Justice Cypher says,
confirmed by the legislative inaction
or its responses so far.
-: Well, certainly the first step
in the Constitutional analysis
of our separation of powers argument
is yes, statutory interpretation.
Disease can't be another natural cause
because then there's no limitation.
Then every natural cause presents
a civil defense state of emergency, potentially.
-: Not every natural cause.
Every natural cause that's a natural disaster, basically.
It's not every time someone gets sick in Massachusetts.
It's a pandemic that threatens our entire way of life.
-: And the Public Health Act is there to prevent that.
And again, I must stress this,
that it's not the job of the legislature
to approve or disapprove of what the governor's policy,
governor's policymaking is
and the governor's choice to use the legislation.
-: Well, counsel, you call it policy-making,
but I think Justice Kafker might call it
interpretation or application.
It's a little bit different, isn't it?
-: I don't see the different since,
just looking at essential and non-essential businesses.
Making that judgment, these were lawful businesses
before, well, March 10th was the declaration
and then a couple of weeks later was Order Number 13.
But that is the responsibility
of the legislature to take that up.
The legislature can make those choices.
The governor may not.
That is a clear policy choice,
deciding who is or is not essential.
And in the meantime, not taking into consideration
any possible exceptions,
any way for any of the petitioners
to ask to be recategorized, ask for appeals,
to ask for waivers or anything of the sort.
If the legislature was involved,
they would be able to influence their legislators.
-: I thought he had a lot of boards from representatives
of all the industries and the interests
and the hospitals and the schools
and the businesses advising him.
-: These are not elected representatives of the people.
I'm sure that those were-
-: People could still go to their
elected representative though, can't they?
-: They certainly can and they have been.
-: Mr. DeGrandis, I take your point
that it's actually our job
to determine whether or not the governor's orders
exceed lawful authority, correct?
-: Correct. -: All right.
But as Justice Kafker indicates,
and I'd like to hear your answer to this,
maybe again, as he indicates,
if we determine using tools of statutory interpretation
that the Civil Defense Act natural causes
includes the pandemic, the fact that there's another statute
doesn't bar that interpretation.
In essence, if there were two statutes
the governor could have used
and he picked one that's not unlawful, correct?
-: Well, that would be correct,
although it should inform your decision
as to whether he made the right decision in the first place.
-: That's policy, the statutory intent,
legislative intent policy that you posit
is that the Public Health Act
is properly the vehicle to address a pandemic.
-: Right. -: If we don't agree with you,
and we think that the natural causes language
in the prior act controls, it's up to the governor.
If both are applicable, he can pick either.
Correct?
-: I don't think so.
I think to the extent that,
so let's take that hypothetical.
Let's assume for the sake of argument
that you decide that he, that either one could work.
To the extent that then-
-: Well either one is lawful, right?
His authority is lawful under either one, correct.
-: Right, so let's say lawful under either one,
the civil defense component of the Civil Defense Act
is the only portion that he could use
with respect to civil defense issues.
He would still need to effectuate the legislatures will
with respect to the Public Health Act
in getting Massachusetts healthy again,
in monitoring and controlling the spread of the disease.
I don't know where that dividing line would come in
since it strikes me that these
are two profoundly different Acts,
but there would definitely be a dividing line there.
Because there could be a blended circumstance.
Not in this particular case,
but in another type of disaster, perhaps.
-: Thank you, so let me just make sure
Justice Kafker is done with his question.
And I know Justice Lenk has a question.
Are you all set Justice Kafker?
-: Mm hmm. -: Justice Lenk?
-: I'm all set, thank you.
-: Okay, any further questions for Mr. DeGrandis?
-: No, thank you.
-: Thank you, council.
Michael: Thank you.
-: Mr. Martland.
-: Morning, may it please the court, Douglas Martland,
Assistant Attorney General for the governor.
If I may make one brief response
before addressing your questions
in relation to Mr. DeGrandis's argument.
Here, the governor is that appropriately acting
within the bounds of his authority,
delegated to him in the Act.
There are three limiting principles.
The first is judicial review.
All actions remain subject to judicial review
for under an arbitrary and capricious standard.
The second is the Act itself.
The declaration of emergency must fit
within the statutory definition, a broad definition,
and each order must reasonably relate to the emergency.
And we can talk about in a few minutes,
why that's the case here.
Third, we look to the legislature,
whether there has been approval
or disapproval by the legislature.
And again, we can talk about whether there has been here,
but I think the facts are clear that there has been
repeated confirmation, ratification,
and appropriation by the legislature
of the governor's actions here.
-: But, number one on your list,
number one on your list always exist in every legislation.
So that doesn't answer the question.
And as Justice Gaziano just pointed out,
number three on your list doesn't help
because it's not for the legislature
to affirm the Constitutionality of the statute
or the interpretation of the statute.
So really it's really about legislative intent
from the Civil Defense Act.
And I guess the question is
if there's going to be this delegation
of this type of enormous power,
shouldn't be authorization in the statutory language
be clearer than this?
As opposed to, in Section Five in Subsection Five,
we've got floods, we've got earthquakes,
and all the sudden fires,
and then we have other natural causes.
Isn't "and other natural causes"
in any way limited by the other three circumstances.
Again, I'll repeat, especially when we're dealing with
an enormous, enormous delegation of power.
-: I understand that, Your Honor,
the only commonality between the various disasters
and catastrophes that are listed in that phrase
is that they are disasters of massive proportion
that dramatically affect the people of the Commonwealth.
And the pandemic clearly falls within that.
It arises from a natural cause, in fact,
that's undisputed in this case,
and it is causing a disaster of massive proportions
within the Commonwealth and across the country.
-: Justice Lenk?
-: What about the flu pandemic in 1918?
Was that not a massive public disaster?
Was that not dealt with under the civil,
that was not dealt with under the civil side of it?
Of course that didn't exist at the time,
but the question is then,
what part of the Civil Defense Act would it come under?
The other causes, natural causes?
-: Yes, Your Honor, we certainly agree
that the 1918 flu epidemic or pandemic,
if the Civil Defense Act had existed at that time,
would clearly fall under the other natural causes language.
-: How about the polio epidemic?
-: I think there are several factors here
that are highly relevant
to distinguishing the two, Your Honor.
The first is that in both the 1918 epidemic,
and again today, we're dealing with a novel virus
to which no playbook exists for how to combat it.
-: That was true of polio as well, wasn't it?
-: To a degree, Your Honor, yes.
But it was not nearly as highly contagious,
was not overwhelming public health systems,
was not causing the scale of deaths and destruction
that it is in this instance.
And it was certainly reasonable for the governor
to make a decision that it falls
within the other natural causes language.
-: But he didn't in those instances.
In polio, he did not, did he?
-: I do not believe so, but prior governor's decisions,
whether or not to act under the Civil Defense Act,
certainly shouldn't determine
whether this particular circumstance
falls within the Civil Defense Act.
-: Let me just make sure Justice Lowy finished his question.
-: Well, I have some constitutional questions to ask
that I'm going to wait until
the statutory interpretation is done.
-: Okay, so we have Justice Cypher
then Justice Kafker, in order.
-: With regard to, thank you,
with regard to the statutory interpretation
and the examples Justice Lenk raised
of the flu pandemic and the polio pandemic,
one occurred definitely,
they were before the Civil Defense Act was passed.
But now considering where we are today
with regard to international air travel,
the speed of automobiles,
how fast everybody's moving around,
do you think that the statute needs to be amended
to take into account the modern situation?
-: Your Honor, the statute does not need to be amended
for the governor to have authority in this instance.
Again, this is a disease that, or a virus that arises
from a natural cause that is causing destruction
and damage on the scale of the other disasters listed
in the phrase, fires, floods, and earthquakes.
-: Okay, may I ask one followup
on the statutory interpretation?
Your brother had argued that there should be
a limited duration involved in this.
What do you say to that?
And what do you think is a reasonable amount of time
for handling an emergency?
-: I think, Your Honor, that it depends on the circumstances.
Here we have, if you look at the broader statute as a whole,
we have the occlusion of the term war in the statute,
which is inherently a long lasting conflict.
And certainly we can draw the conclusion from that,
that the legislature did not intend duration
and the potential duration of a pandemic
or of an event to determine whether or not
there should be a civil defense emergency.
And again, I would come back to the limiting principles here
that during the course of any civil defense emergency,
it of course remains subject
to arbitrary and capricious review
of whether the emergency remains ongoing.
But what we shouldn't be doing
is using that duration to cutoff an emergency
that we're clearly in the middle of right now.
-: Justice Kafker?
-: And my questions are the same.
How we do the legal analysis under the statute.
They follow up on Justice Cypher's last questions.
How do we evaluate the governor's powers over time?
We started in March, it's October,
we're working towards October.
The legislature hasn't changed its response,
but does the governor's power remain sort of
at that level of deference
as we move later into the process a year or two?
If we don't get a vaccine for two years,
how do we analyze that legally?
I understand it's factually dependent,
because the statute clearly has
an emergency time component to it,
are there cases guiding us on
how to deal with the passage of time?
-: Certainly, there are, Your Honor.
I would point you to two things,
one in the statute itself,
and then a specific case from this court.
In the statute itself, you can look at Section 22,
the sunset clause.
When that was originally enacted by the legislature
there was a two year limitation on the operation
of the Civil Defense Act.
Over the next several years, the legislature removed that,
again, indicating that it did not intend duration
to be the limiting factor of the emergency.
I'd also point this court to
the Director of Civil Defense case from 1977.
In there, the court was evaluating a 1970,
or excuse me, a 1962 executive order.
So at the time of the decision it was 15 years old.
And the court didn't blink at the age of the executive order
and it's continuing operation.
And two reasons for that in the circle-
-: What did that executive order empower the governor to do?
I take it it's nothing like
this level of authorization, is it?
-: Certainly in a comparison to scale,
that is correct, Your Honor.
But in that instance,
the court was untroubled by the duration
and looked specifically to the legislature's actions
that it had taken in relation to that order.
In there the legislature had practically ratified
the governor's actions in two separate ways.
First, it had confirmed it by continuing to provide
the funding for the various employees.
And second, it had appropriated money to do that.
And again, that's exactly what we have here.
We have the legislature confirming
and ratifying the governor's decision
in a host of legislation that's cited in our brief,
that includes the declaration of emergency
being a contingency for the operation of the statute.
We also have the legislature appropriating
over a billion dollars in funds
to the Commonwealth COVID relief response.
And if the legislature had any indication of disapproving,
certainly this court could conclude
that they would have done something more than that.
-: Delegation is a legislative intent issue,
but ultimately, as I said previously,
it's our call as to whether or not this is lawful, correct?
-: We certainly agree that this question
is subject to judicial review, Your Honor.
-: Okay, let me ask you a different question.
Can you address the whole concept
of Constitutional winners and losers
and more specifically,
the impact of Judge Woodlock's second amendment decision
in the federal court?
-: I think this court should look closely, Your Honor,
at both Jacobson and the recent federal decisions
that interpret Jacobson as applied
this current pandemic and governor's orders in those cases.
Those cases make quite clear
that the court's role here is to approach any order
with broad deference as to the governor's interpretation.
And the reason we do that,
and this court specifically talked about that
in slightly different contexts
in the American Cancer case,
is because the governor is in the best position
with the most contemporaneous knowledge
to deal with this emergency.
And the governor has all the information,
information that the legislature
just doesn't have at its fingertips.
And Chief Justice Roberts said that
in his concurrence in South Bay,
and it's been a theme that's been repeated
throughout all of these recent federal court decisions.
-: Justice Lowy?
-: Yes, along those long those lines,
I want to ask you about Order Number 46,
which as you know, deals with the exemption
for outdoor religious gatherings and for protests.
And the petitioners are making the point here that
that classification, that exemption, seems to be arbitrary.
And also that there seems to be a distinction
that may raise issues about whether or not
there's an expressive content concern
with that exemption for protests and religious worship.
And even putting aside whether we're dealing
with strict scrutiny or rational basis,
we're dealing with a right to assemble.
And with dealing with an issue where we have concerns
about over-broad, or even under-inclusive.
Is there a problem in time, place,
and manner with Order 46,
that might be different than some of the other orders here?
-: There is no problem with Order 46, Your Honor.
Just like all of the other orders,
it's a content neutral, generally applicable order
that applies to everybody.
What the governor has clearly done here
is try to identify specific circumstances
and then address the public health implications
of those circumstances.
And the orders leave ample opportunities
for alternative avenues of communication.
And they have also attempted to accommodate
as best that can be done during this pandemic,
the core First Amendment rights
of all of the people of the Commonwealth.
-: Justice Lenk?
-: Oh, I didn't have anything, thank you.
-: Oh, I'm sorry, I thought you raised your hand.
I'm sorry. -: No.
-: Any further questions, Justice Lowy?
-: Yes, could you just address the issue,
you say that all of the harms that the petitioners raise,
they're too general, they're not specific enough.
I don't mean to point out the one
that is the most specific in response to that argument,
but the owner of the tanning salon
lays out with some precision
what the harm is.
That we need a narrow tailoring
and an appropriate government interest.
We obviously have the appropriate government interest.
I don't even think that's contested.
As far as narrow tailoring and harm,
at least address that one plaintiff.
-: Certainly, Your Honor, two responses.
The first, I believe that we acknowledged
in a footnote in our brief
that a plaintiff like that who has alleged specific harm
certainly has standing.
The first part of your question.
Answering the second part of your question,
both Jacobson and Chief Justice Roberts's decision
in South Bay make clear that these difficult
and challenging line drawing decisions
are best committed to the executive official
who's publicly accountable to the people.
As opposed to courts that should be giving
broad deference to these decisions.
And within that framework,
it was perfectly permissible here,
for the governor to make
a difficult line drawing decision
as what entities should be open during what phase.
And certainly the plaintiffs, or the petitioners here,
can challenge any of these individual determinations
on an arbitrary and capricious standard,
subject to judicial review.
-: Justice Cypher, and then Justice Lenk.
-: I'm sorry, me?
-: Justice Cypher, then Justice Lenk.
-: Okay, thank you.
-: I'd like to just have you address, Attorney Martland,
your brother's argument that actually,
the local communities are better placed
to regulate their local businesses
through their boards of health
because they know their communities.
For example, if somebody lives in a very rural area
the needs might be different than somebody
who lives in a more urban area,
and that it's actually the local boards of health
and the local leaders of the community
who are better in touch with that.
-: Certainly, Your Honor.
And the answer to that question is that,
in this instance, the Commonwealth needed every tool
that it had available to it to deal with this pandemic.
Certainly the local boards of health represent one level,
but they cannot provide the coordinated
state level of response that is necessary
to combat the pandemic in Massachusetts.
Their authority does not extend to many of the factors,
including expanding healthcare capacity,
regulating certain licenses, and things like that,
that are absolutely essential
for the Commonwealth's response.
-: Justice Lenk?
-: I just wanted to make sure that I understood
the governor's position here which is that,
I gather that he felt that he could have used
either of these statutes, in order to act?
-: The governor's position is that
executing his authority under both statutes
was necessary because of the pandemic itself
and all of the-
-: So he has exercised it also under the other statute?
-: Yes, if you look at the declaration of emergency
from March 10th, he makes a declaration,
the declaration under both the Civil Defense Act
and general laws Chapter 17, Section 2A.
And the governor's position is that
all of that authority was essential
because the Commissioner of Public Health's authority
does not extend far enough to respond to the pandemic.
Justice Lenk: Okay, thank you.
-: Any further questions for, Justice Lowy?
-: Just one last question.
I think that the petitioner's main point is that
they believe that the governor
was picking winners and losers here,
and that putting aside whether or not
the legislative mandates available,
and one of the examples has to do with,
for instance, well, how do you distinguish
between the risk of the pandemic
in an arcade as opposed to a casino?
And what's the rationale for something like that
that allows one person to pick winners and losers?
What's the response to a Constitutional argument that
that it's just arbitrary and it's just drawing lines
with no rational basis?
-: Well, certainly, and there are two answers
to this question, Your Honor.
The first answer is that the line drawn here
was not arbitrary.
Casinos are highly regulated by the state commission.
They're they're well-resourced, and they're in a position,
both with cameras and security,
to attempt to ensure the public health of their patrons.
They're also only three casinos across the Commonwealth,
and they're in relatively new buildings.
By comparison, there are a host of arcades
across the Commonwealth.
They are generally in poorly ventilated buildings
and there is no state oversight commission for arcades
to impose any type of workplace sector regulation,
which we've seen the governor here establish,
or the state establish by regulation.
The second answer, Your Honor,
is that in Order 50, which was issued yesterday afternoon,
the governor moved up arcades into phase three
and they're going to be able to open,
I believe on September 17th, once the workplace,
or the sector specific standards are in place for arcades.
-: Justice Kafker?
-: There's a no damages provision
under the Civil Defense Act, right?
So the governor has these terrible choices
he has to make here,
but there's no way to comp it,
and we owe him, I take it, as you say,
deference on that decision making,
but some of the decisions are gonna
not be a hundred percent correct.
But there's no way to compensate anyone for that, right?
-: That's unfortunately correct, Your Honor, yes.
-: That's the really difficult part of this that,
as Justice Cypher began there,
we're all in this together,
but some people are suffering much more than others
and there's no way to correct that, right?
-: Well, I think that's a situation, Your Honor,
where you have to look to the Commonwealth's
broader response to the pandemic.
One of the statutes that the legislature passed during this
was the expansion of unemployment insurance.
And certainly that is, account for, in part,
the effects of what's happening
in relation to the pandemic.
-: Any further questions?
Thank you, Mr. Martland.
-: Thank you both. Doug: Thank you.