By Chris Villani

Law360 (December 10, 2020, 12:31 PM EST ) Massachusetts' top court on Thursday upheld Gov. Charlie Baker's executive orders aimed at slowing the spread of COVID-19, ruling in a unanimous opinion that the sweeping measures do not run afoul of federal or state constitutional rights.

The Supreme Judicial Court held that the governor's use of the Civil Defense Act as the basis for the orders — which closed nonessential businesses and established a phased reopening plan — was proper because the pandemic falls under the phrase "other natural cases" as outlined in the Cold War-era statute.

The top court also found that Baker has applied his orders in a way that is content-neutral and narrowly tailored.

"Given that COVID-19 is a pandemic that has killed over a million people worldwide, it spreads from person to person, effective vaccines have not yet been distributed, there is no known cure, and a rise in cases threatens to overrun the commonwealth's hospital system, it is a natural cause for which action is needed to 'protect the public peace, health, security and safety, and to preserve the lives and property of the people of the commonwealth," Associate Justice Elspeth B. Cypher wrote in the 41-page opinion.

A group of businesses sued Baker earlier this year, arguing that his exercise of authority under the CDA was unconstitutional and that the Public Health Act, which gives authority to local boards of health, should be the controlling law.

The SJC rejected that notion Thursday, with Justice Cypher writing that the scope of the CDA makes clear that the Legislature wanted it to be used in such a large-scale emergency.

"It is clear from the language of both acts that the Legislature could not have intended the PHA, and therefore primarily local boards of health, to be exclusively responsible for addressing a public health crisis such as COVID-19, a pandemic that has killed over 1 million people globally and over 10,000 people in Massachusetts," she wrote.

The plaintiffs in the case are two hair salons, a tanning salon, a boxing gym, two restaurants, two houses of worship and their pastors, the head of a religious academy, a family entertainment center that offers various indoor attractions, and a conference center. They recently filed a supplemental brief arguing that a U.S. Supreme Court decision last month overrides the legal precedent relied on by Baker.

But the SJC said this case is different than the Supreme Court's ruling in Roman Catholic Diocese of Brooklyn v. Cuomo , which struck down New York's limits on religious gatherings.

"The right to work is not a fundamental right that receives strict scrutiny," Justice Cypher wrote. "The orders do not ban teaching children, but rather limit gatherings in schools; and limitations on religious gatherings to mitigate COVID-19 risks are valid as long as the limitations are no more stringent than those imposed on similarly situated secular institutions, which they are in this case."

The suit, first filed in state court before it made a beeline to the SJC, argued that Baker was behaving effectively like a king and arbitrarily picking "winners and losers" when he decided that some businesses could stay open while others shuttered. Again, the SJC saw it differently.

"Although the emergency orders do place different businesses in different categories, this does not equate to dispensing with the law, as the emergency orders do not limit the suspension of the law to an individual person, or group, but instead apply equally to similarly situated categories of businesses," Justice Cypher wrote.

Rather than, as the suit claims, "donn[ing] the mantle and crown" to pick winners and losers, Justice Cypher wrote Baker "is making difficult decisions about which types of businesses are 'essential' to provide people with the services needed to live and which types of businesses are more conducive to spreading COVID-19, and basing his emergency orders on those determinations."

The suit was filed by the New Civil Liberties Alliance, which is leading similar challenges around the country. Its legal director, Mike DeGrandis, said in a press conference Thursday that it was "difficult to understand" the SJC's interpretation of the SJC and hinted at a possible appeal to the Supreme Court.

"The court said the governor needed the Civil Defense Act to act quickly to coordinate where local boards of health lacked the resources, but we didn't bring this case in March or April or even in May," DeGrandis said. "It's December and there is no reason why the Legislature hasn't been brought into the fold."

He added, "I will say this about out future plans, I think the U.S. Supreme Court would be interested in learning more about the state of Massachusetts government and where it stands."

Baker's representatives did not immediately respond to comment requests Thursday morning.

The NCLA has argued that Baker's rules are unconstitutional and should be reviewed using strict scrutiny, the highest level of judicial review. But, finding that constitutional rights were not violated, the SJC ruled that a rational basis review is the proper standard.

In addition to being on solid constitutional ground, the SJC found that the governor is acting under an express grant of authority by the Legislature, which has not sought to undo his actions. Legal experts have noted that court challenges to governors' power during the pandemic have been more successful in states where tension exists between the executive and legislative branches.

While Baker is on solid legal ground to invoke the CDA during COVID-19, not all health emergencies are meant to be handled with this law, the SJC ruled.

"The distinguishing characteristic of the COVID-19 pandemic is that it has created a situation that cannot be addressed solely at the local level," wrote Justice Cypher, who during September oral arguments extolled Baker for doing a "darn good job" in combating the virus.

"Only those public health crises that exceed the resources and capacities of local governments and boards of health, and therefore require the coordination and resources available under the CDA, are contemplated for coverage under the CDA," she wrote.

Citing a surge in COVID-19 cases and hospitalizations, Baker on Tuesday ordered the state to roll back its reopening, reducing the limits on outdoor gatherings and the capacity restrictions on restaurants, health clubs and other venues and closing some indoor recreation and entertainment facilities.

The businesses are represented by Michael P. DeGrandis of New Civil Liberties Alliance and Danielle Huntley Webb of Huntley PC.

Baker is represented by Amy Spector, Douglas S. Martland and Julia E. Kobick of the Massachusetts attorney general's office.

The case is Dawn Desrosiers et al. v. Charles D. Baker Jr., case number SJC-12983, in the Supreme Judicial Court for the Commonwealth of Massachusetts.

--Editing by Katherine Rautenberg.

Update: This story has been updated to include comments from NCLA.

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