Announcer: SJC-13193 City of Lynn, (indistinct) Murrell.
-: Okay. Attorney Gens,
or is it Gens, I'm sorry.
-: It is Gens.
-: Okay.
-: Good morning, your honor.
May I please the court.
There are three issues contained in this appeal.
The first one I think is not,
doesn't merit much discussion at this point in time.
And that is the issue of mootness.
At one point in time,
the mask mandate from the governor had been rescinded
or expired when the governor ceased to his,
an enactment of the simple,
his powers under the civil defense act.
However, since that time, as we predicted in our brief,
the City of Lynn is of course now
imposed its own Mask Order
that does essentially the same thing.
There are flaws with that too,
in terms of the back that the Mayor.
-: Well, Council, can I ask you a question?
Is the issue of Lynn doing it properly before us,
has that been brought in any of the lower courts?
-: No, it hasn't your honor, but in terms of mootness,
I think that if the court were to determine
that this matter is moved,
just because the governor's order is gone,
the same controversy arises,
but under the Mayor's order.
And that's a court appeal.
-: As I remember from reading all that law in this area,
it seems to me,
there is a strong argument to be made
that the individual municipalities have actually more power
than the governor to do things like that.
Isn't that right?
-: I would disagree with that
because the governor at least had the authority
of the civil defense act as determined by this court
and the destroyers case,
no such legislative enactment provides the Mayor
or the local public health authorities
with that type of authority.
I realize there is an argument
that they have the broad authority
under the public health statutes,
but certainly wouldn't be enough to enact the type
of comprehensive regulatory scheme
that the governor did in,
that included things like the Mask Order
declaring some businesses essential
and others non-essential.
-: So you're basically your point is, look,
even if this is moot for the governor,
it's still happening in the municipalities.
-: Precisely my point.
-: But we're not briefed on the municipalities, are we?
-: Well you are, and so far as the municipalities A,
would be potentially preempted by federal law
by doing the same thing, that argument would still apply.
And two, the other issue in the case,
besides the mootness and the preemption
is what type of show showing does the government
have to make to obtain a preliminary injunction?
And of course our argument is as they fell short
of the very modest showing that they have to make.
And of course, that's the other,
those are the two issues that I'd like to discuss with you.
But I think from a mootness point of view,
we're faced with those issues,
even under a Mayor Oriel or a public health type of board,
both the preemption and the standard
for the issue with that.
-: I don't understand that though,
because we don't have, OSHA is sort of uncertain too,
because of the U.S. Supreme Court's decision.
So this case was decided before there
was any regulation by OSHA,
then the U.S. Supreme Court guards part
of the regulation by OSHA.
So that's uncertain, the governor has withdrawn his
regulation, or, you know, it's not in effect.
And we don't really have the legal argument
on the municipal stuff.
So should we really be deciding this case?
-: Well, if the, if a municipality does the same thing,
the governor does the same federal preemption analysis
and you rightly point out some of the uncertainties in it,
would still be applicable.
We'd still have to sort that out.
And certainly if this court were to declare this case moves,
we would be in my client that we're to conduct our business
in the way that she has in the past.
We'll be right back in the courts again,
with the same issues on the federal preemption.
-: Mr. Gens, is, your argument regarding preemption
is it's capable of repetition,
and indeed it has repeated itself
and may escape review if we don't look at it,
is that's your bottom line on mootness?
-: That's essentially it,
although I'd go further and say, it's right back at us,
although it's coming from a different sovereign.
-: Can I ask just,
is there still an open question about fines
that your client has?
I mean, would that, does that impact the mootness question?
-: I think that it certainly does that
that is going to have to be sorted out.
And this court's determination of that
would almost inevitably being as positive as that issue.
-: Isn't that in another case?
That's not in this case, right?
-: Well, that's true, but it's true.
But it is an issue that if this court were to determine it
would govern the other case, in other words,
let's suppose that this court said
there is federal preemption here.
The governor's regulatory scheme exceeded its,
the supremacy clause and it can't apply.
Well then the fines can't stand.
-: But we shouldn't decide this case
so that we can help resolve the matter
in the Lynn District Court.
The issue is we have a,
an issue of constitutional dimension
and we could have all different types of preemptions
as who relates to masks and other issues with the pandemic.
So I go back to Justice Kafker's point
where the candidates no longer
in effect at this very moment.
Why do we want to try it into these waters
and perhaps create a conceptual framework
that doesn't meet the next iteration?
-: Well, the possibility of this recurring
in much the same way is certainly there.
We have seen time and time again,
governments reverse course,
and then reverse course again,
it's been two years now
and there doesn't appear to be any coherent end in sight.
And I think that the lower courts
and the governments in the citizenry could use some guidance
as to whether or not this area of workplace regulation
is preempted or not.
And I'd like to make a few arguments along those lines,
which I think are significant
and bear upon the mootness issue as well,
because they're once again capable of
and likely to recur just as this mask mandate recurred,
as we predicted, even though it didn't come
from the governor, at least at this time around.
-: But can I ask you before you go into preemption?
I'm sorry. I know you really want to dive into it.
But my question on mootness is the following,
capable of repetition is only one half of the task
we used on mootness.
The other half is yet evading review
and where you have upending cease
and desist order and appeal.
Is this really something that will evade review?
I guess it goes to Justice Lowy's question, you know,
why are we going to help the Lynn District Court in this way
when it's perfectly capable of addressing
the issue before us.
-: Well, the Lynn District Court
is just addressing the citation issue.
-: And it's your defense in the citation issue
that the governor did not have the authority
to issue these orders
because they're preempted, is that your defense?
-: That's part of the defense.
-: So you have a different defense.
So even further to the point of mootness,
that case might be resolved
on whatever other defense you may be suggesting
in that case.
-: It's possible.
-: So why don't you go ahead on preemption item, you know,
unless somebody else has questions on mootness.
-: Okay, well, I would like to go ahead on preemption,
although I'll concede to you that that is not the issue
that interests me the most,
the issue that interests me the most is the absence,
the pauCity of any showing by the government to support this
claim that the public interest will be harmed
in the absence of the injunction.
And, but I'll--
-: I realize that you're not interested
maybe in the preemption question, I personally am.
So I'll ask you my question.
-: I didn't say I'm not interested.
I'm just saying my priority.
-: Okay, well, let me ask my question anyway.
How do rules and standards regarding face coverings
to mitigate this novel coronavirus in public places,
including places where the public
is an invitee conflict with OSHA?
-: Okay, the two arguments that the court below
and the government, both the Attorney general
and the City of Lynn have made, why OSHA doesn't apply.
I'd like to just address it from that angle.
First of all, OSHA, does they claim that OSHA
doesn't have regulations
or enforcement dealing with COVID-19.
That is contradicted right in the court's decision,
page six of memorandum decision that's in the addendum
where the court is quoting from OSHA and states.
And this is a direct quote.
-: From the guidance that OSHA
has given in the relevant timeframe?
-: I'm sorry, I didn't quite hear
or understand what you've asked me.
-: Well, you know, there's a difference between rules
and standards promulgated by OSHA, as I understand it
and guidance that OSHA might issue.
-: Okay. Well, OSHA I think we can agree
OSHA issued guidance, but rules and standards.
They have an enforcement action
on this very point against this very party.
And the court quoting from them stated
that there was violations for Liberty failing to quote,
furnish employment, and a place of employment,
which are free from recognized hazards that are causing
or likely to cause death or serious haunt of employees.
And that employees are working
in close proximity to each other and customers,
and are exposed to (indistinct)
to the virus that causes COVID-19.
So obviously OSHA.
-: I understand it. I haven't pulled the cases yet.
My understanding is that guidance that OSHA might issue
does not have the preemptive status
that a rule or standard that OSHA issues.
And so my question to you is what is your response
to that argument?
-: I would agree with the point that Mayor guidance alone
wouldn't survive, however, enforcement of OSHA standards,
which is happening in this case
and which I'm quoting from
would constitute OSHA's app involvement
in this area of workplace safety.
-: Is it is, is OSHA directed at employee health
and safety as opposed to public health and safety
for the customers that go into Liberty?
-: I think that OSHA's could potentially flow,
even though their primary responsibility
is worker safety or workplace safety,
to the extent that the public is present.
I think that there are OSHA standards, as you know,
things like hard hats on job sites and things like that,
that would be directed towards the public
in so far as the public is involved in a workplace.
-: Wow.
-: Because it would compel the public
to conform to the OSHA requirements
as long as they are at the workplace.
-: But here we're talking about regulation
that you obviously dispute,
but a regulation that says is airborne disease.
We're gonna protect the people that walk into Liberty.
The customers and OSHA says, you know,
to extent there's some guidance,
but OSHA says you have to mask up to protect each other.
Well, there are not these air tight containers.
We still have safety roles that the state imposes
traffic safety, building codes safety,
and OSHA says you need compliant ladders,
but the state has safety rules in job sites,
building codes, right?
-: Yes, they do.
And I think that the Steel Institute case is extremely
instructive for us in determining this case here,
in that case, there involve cranes and things like that.
They were basically potentially endangering the public
if they fell over,
but the state regulated them under the building codes.
It was found not to be preemptive of OSHA,
but the salient feature of that case
is they didn't regulate cranes
or any of that equipment on private work sites
where the public, where there was the public, wasn't where,
whereas the governance scheme does.
In other words, the governor scheme
doesn't regulate private activity.
If I come over to your house or to your backyard,
we have a barbecue with some, I don't have to wear masks.
-: I try not to ask this question,
but I guess I have to ask it as it perhaps relates
to the public interest.
What's the thought process behind having people come
into the business and have their masks confiscate.
-: The thought process there was that the masks were harmful,
and there's some evidence, there's evidence in the record
going to that point, obviously in the absence
of a enforceable rule from the governor,
if the governor's mandate is somehow unlawful,
an employer would be well warranted
in taking a position that the mass are harmful.
They're giving off chemical vapors in the light.
And that was a position that my client took
after doing research.
And after observing ill effects
in the workplace from the mask.
-: Well, let me ask you a different question.
I hadn't finished by the question I want to ask you
is I walk into Liberty to get my taxes done off the street,
and I'm not wearing a mask.
Can OSHA fine me?
-: No, I don't think that they could.
-: Okay.
-: But consider this, in the back room
or the warehouse of a business,
two employees under the governance scheme would have
to wear masks, in their backyard, they wouldn't.
So the governance scheme is actually more directed
and I could cite many other examples
more towards the workplace
than it is towards the public.
So this idea that the workplace regulation
of the governor is incidental
to protecting the public really falls
once you examine this entire scheme of the governor,
which is to my mind as a business litigated,
primarily a vast business regulation scheme.
In our addendum, there's the governor's order number 33,
which was not the Mask Order,
but it basically the overview of the workplace safety rules.
And it's just replete with all sorts of workplace safety,
things that don't apply.
And in many or most instances to the public at large,
and there they're going about their private business.
So that's a terrible problem
in a preemption type of analysis.
And I think that that Steel Institute case
where the government is wisely
and consciously exempting workplace activities,
where they're not interacting with the public
is the type of case that can survive
a preemption challenge.
Whereas this one here is highly problematic.
And once we get to this--
-: Attorney Gens, I'm gonna ask if anyone
has any further questions.
Okay. Thank you very much.
And we're gonna move on to Attorney Wellock.
-: Okay.
-: Am I saying that right?
-: Yes ma'am, I'm Justice Attorney James Wellock.
Good morning, chief justice and associate justices.
And may it please the court.
My name is James Wellock
and I'm the assistant city solicitor for the City of Lynn.
I'm here representing our board of health.
This case is before you on your own motion,
following a justice of the spirit court,
issuing an injunction to enforce the cease
and desist order of the local board of health
coupled with a state order,
as he certified two questions to the appeals court.
First, whether the OSHA act a federal statute
preempts the governor's executive orders to address COVID-19
and two, whether the court correctly found issuing
an injunction was in the public interest.
But before we get to those questions, excuse me,
before we answer those questions, this case is moot.
COVID-19 continues to affect how we all live, work and play.
I'm making my big SJC debut today,
appearance today by Zoom for this very reason,
but the legal landscape that existed
when the board brought the suit no longer exists.
-: How do you distinguish this court's archdiocese case?
-: I'm sorry.
-: How do you distinguish the Supreme Court's archdiocese
and Brooklyn case.
-: I'm unfamiliar with the archdiocese of Brooklyn case.
-: Okay, maybe you answer that as well. Thank you.
-: The governor's orders that the board wish to compel
compliance have all been rescinded,
and there was no relief that this court can grant
to either the board or Ms. Murrell.
There was no live controversy here.
Even if this court were to sustain
the ruling of the superior court,
Ms. Murrell's business would continue to operate
as it currently does today because the orders are over.
There's no live controversy.
To the preemption question, the--
-: Before you move on, can I just ask about the question
about addressing it,
because this is an issue that's capable of repetition
yet evading review, what's your response to that?
-: Well, there were,
there was an avenue for a review by the appellant.
The appellant could have brought the board of health
to court to challenge the cease and desist order.
It did, the cease and desist order was ignored
and was not complied with was not appealed.
So the city sought an injunction against the business,
and the appellant did not file a affirmative defense
or a counterclaim against the board challenging the order.
So as far as evading review, it seems to me
that the legal challenges to the whores actions,
there was an opportunity there that was missed.
And so I think that those arguments in this case anyway,
are weight, but there's also a number of other avenues
to review this particular matter.
The lawsuit at the district court,
which has been mentioned,
and there was also an injunction issued
by the State Department of Labor Standards,
which I believe is also being challenged
in a superior court case.
Should further litigation occur in the future,
I don't see how we can at this point anyway,
speculate and say that those future instances
of enforcement could evade review as well.
-: Isn't this a little complicated though,
because Lynn's Mask Order
didn't go down with the governor's regulation, it's ongoing.
So this is a little different
because there is a live controversy.
We just don't have the issues, bring them this case.
And we also, the preemption issues are, you know,
we're dealing with pre-OSHA activity
and pre-U.S. Supreme Court decision on that activity.
So it's kind of, it's all conjectural,
but we do have something that's alive,
which is the Lynn's Mask Order, right.
It hasn't taken it down yet.
Normally when we have something move,
we have the whole thing's moved.
This is a little odd.
-: So the superior court action had nothing
to do with Lynn's Mask Order.
Lynn's Mask Order was issued in December of last year.
This case was from, I think, almost a whole year ago,
back in the early spring of 2021.
So the substance of the superior court case
had nothing to do with the Lynn Mask Order.
-: Right, but the justification,
I understand the justification has disappeared.
Lynn was acting under the governor's authorization.
Now it's acting under its own authorization.
It's just, it's not,
this is a little different from cases
where there's not a life controversy,
there's a life controversy,
we just have a brief view of what the right issues
it seems like.
-: I understand that there is a Mask Order in place
and so the substance
of what has been requested for enforcement exists,
but it's not properly before this court.
If I could continue to preemption
as was readily stated by justice of this court,
there was no OSHA standard in effect.
At the time of this lawsuit, there was guidance,
but guidance is not a standard.
And in order to show preemption,
there has to be a hard controversy
between a federal standard and the state requirements.
We don't have that here.
It just, it simply did not exist.
And that's evidenced by in the verified complaint,
OSHA was actually present at the defendant's property
and issued a citation, not under citing any OSHA standard,
but citing a general.
This business is unsafe to the public welfare specifically
because it's not following the local requirements,
meeting the state mask mandate and the DLS regulations.
Unto the public interest--
-: Can you address opposing counsel's argument
that last bit that OSHA is enforcing its guidance
shows that there is preemption.
-: Well, so I don't believe that it enforced its guidance.
I think that the citation is very clear
and it's stating that it is issuing a fine
because this business is operating
in a dangerous way to the public,
by not following the governor's orders
and the DLS regulations, it was not enforcing.
And it does not say that it was enforcing the guidance.
-: So we have a federal agency enforcing a state provision,
and you're saying that there's no preemption.
Can you just tease that out for me?
Because it seems a little inconsistent.
-: It's a sticky situation.
But I think that what the, what OSHA was trying to do was,
and I think it was properly recognizing
that it was a very dangerous situation
that COVID-19 presented an immediate danger to the public.
-: Well, yeah and besides the sort of the details
and the facts and all that,
how is it that a federal agency enforcing a state guideline
doesn't sort of implicate this preemption issue?
I understand the nature of the threats and the state,
but it seems to me that there's a federal agency
enforcing a state guideline or rule issuing fines
and connection there for a suggest,
maybe OSHA thinks it's occupying this field in some way.
-: Well, I think that OSHA's fine was based on the fact
that the business is being operated in that dangerous way.
And I think that what they were doing
was not enforcing the guidance or a particular standard,
but rather we're just enforcing the OSHA Act of 1970,
section 581, which requires that businesses
not act basically recklessly
and intentionally or willfully putting their employees
in unknown danger.
-: The hottest section 5A13 preempts the mandates here.
-: Well, I think that they work hand in hand.
It does not directly conflict with the state guidance,
but instead is built on it.
And the state orders provide instruction
on how to operate a business safely
and compliance with those orders
would allow these businesses to operate
in a way that was safe for the public.
(indistinct)
-: Any other questions?
Okay. Thank you.
-: Thank you Ma'am Justice.
-: Attorney Parr.
-: Good morning (indistinct) associate justices.
May I please the court, Kim Parr, for the Commonwealth.
If I may go back to some of the open questions
that have been asked of my brothers first off,
the fact that the City of Lynn still has an active
mask mandate really has no bearing on this case.
If you go back to the cease and desist order,
the city was proceeding solely
under the governor's emergency orders.
That's at record appendix 63.
Also the mere fact that a mass mandate exists
in the City of Lynn does not justify reaching out
to tackle that issue, I did not hear Attorney Gens
even suggesting that there was an enforcement action
against Ms. Murrell or anyone in the City of Lynn.
So to the extent,
this question of how OSHA may preempt a municipal face mask
is meant to come to this court.
It should come through an active dispute between parties
who were sanctioned under that particular order.
That's just simply not what to issue in this case.
As for the status of the fine,
cases and the status of the fines.
Yes. That there are two cases actively going on.
One is the 40 year matter in district court
in which Ms. Murrell is calendaring the City of Lynn's vines
under the cease and desist order,
as the record of pending chose
and Attorney Gens said today,
the OSHA preemption question is active in that case.
There's also a 38 action for judicial review
of the department of labor standards,
final decision affirming DLS's own cease and desist order.
And that all Ms. Murrell also raised OSHA preemption
when noticing that appeal.
So on the question of whether this issue
is capable of repetition or evading review,
those two actions show that if they,
it likely won't evade review and very well could come
to this court through those other avenues where the parties
still have a very real personal stake in the matter.
I also would add that OSHA preemption cases
are not typically so transitory in nature
that they never reach this court.
They got to the court and Shadwick,
and another case Commonwealth versus college painters,
I believe is the caption also has reached many COVID,
the constitutionality or validity of many COVID orders
before those were rescinded just like in delusions.
Would the court like me to speak at all
about capable of repetition?
-: Could you address the Supreme Court case
if you're familiar with it?
-: Do you mean Roman Catholic Diocese?
That's that's readily readily distinguishable
because by the time that got to the Supreme Court,
New York state of emergency and the applicable COVID orders
were still in place,
there was only a question about where the governor
was moving houses of worship
between I think like a red or an orange zone.
And so there really was a risk that the governor still
had this authority in New York
and could change the designation
of houses of worship at any time before
or after the location.
Here in contrast, the state of emergency has been rescinded.
The applicable COVID orders are gone.
And so you'd have to take many more leaps of not pipe logic,
but you'd have to speculate about the governor again,
triggering the civil defense act.
-: Were we teetering on that with Omicron?
I mean, that's the, I guess that's the issue
is whether or not the governor could,
if there's that, you know,
now we have an Omicron 2 variant, right?
We're not out of Greek letters.
So the campus come back.
-: I think if you look at how the administration
has handled Omicron, it really speaks volumes
about the likelihood of the Commonwealth
returning to the lockdown status of early 2021.
And it suggests it's very unlikely
because even in the wake
of this tremendous surge over the winter,
the governor did not fall back on the Civil Defense Act
and did not issue any sort of statewide mask mandates.
Instead, the administration proceeded
under a much narrower emergency declaration
under the Public Health Act to take action under that,
the commissioner public health needs approval
of the public health council.
And even under that process,
there is still no statewide mask mandate.
It's been very targeted specific industries
to vaccines and testing.
And so, no, I don't think it's actually likely or certain,
or at least likely that this exact set
of facts will happen again.
And actually the first circuit looking
at the same time period, in fact,
parents found that it would be unrealistically speculative
to think that we would fall back on.
-: To what extent do we factor in the City of winds own
mask mandate that continues to be imposed?
-: In a way, I think that shows
how to centralize the Commonwealth's response
to the pandemic has become
where the governor has not issued something at the statewide
level, municipalities are free to act.
And so the fact that the city has issued
a statewide mask mandate, as I said earlier,
there could be a possibility
that a preemption challenge arises in that respect,
but that's not the case before the court right now,
the case before the court right now
is a declaratory judgment action
about a cease and desist order
that can no longer be enforced
because the premise for it no longer exists.
And I'm wondering this.
-: So we're gonna have to wait for the case to be brought
against the City of Lynn on preemption.
And then we're gonna have to decide this later.
Is that what you're saying?
-: To the extent Attorney Gens was encouraging the court
to reach the question of municipal preemption?
Yes, because that is just not the dispute between the court,
in front of the court right now,
or between these parties at the moment.
-: Also the issue of OSHA moving on, you know,
having issued actually its own set of guidelines
that have been rejected by the Supreme Court,
that case still pending.
There's a lot of moving parts, isn't that true?
There is, and when you're looking at preemption,
what you're doing is comparing what the state has done
and what the federal government has done.
So in evaluating this question
of whether or not the dispute is capable of repetition,
the court does have to consider both sides.
And as the first circuit has said,
it's unrealistic unrealistically speculative
to think that the Commonwealth will fall back into these,
this lockdown situation.
But to your point, your honor,
it's equally speculative to think that the legal landscape
of preemption would be the same,
where so much has changed on the OSHA front.
To your, actually, to your honor's question
about enforcement and preemption.
I would point you toward a Kansas versus Garcia,
good versus Altria group.
They're both cited in our brief,
and they stand for the proposition
that preemption concerns authority
written in the constitutional text,
federal statutes or regulations.
So an enforcement action
is not enough to trigger preemption.
You have to look at what OSHA proceeding under.
Here, OSHA only proceeded under the general duty clause
and the Commonwealth isn't aware of any court
that has given preemptive effect to the general duty clause.
In fact, the three cases we cited in our brief
from the first circuit, the 10th circuit,
and I believe the Western district of Washington
have all found that it should not be given cramped to force.
And that tracks with the language of the OSHA Act
and the teachings of gait,
which is that Congress expressly set in the OSHA
that only federal standards should display state authority.
And so the fact that OSHA said that
Congress included a general duty clause
without also giving it preempted in effect,
strongly suggesting presupposes that the general duty clause
should not displace state law,
absent federal standard.