Desrosiers v. Governor
| Decision Date | 10 December 2020 |
| Docket Number | SJC-12983 |
| Citation | 158 N.E.3d 827,486 Mass. 369 |
| Parties | Dawn DESROSIERS & others v. The GOVERNOR. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Michael P. DeGrandis, of the District of Columbia, for the plaintiffs.
Douglas S. Martland, Assistant Attorney General, for the Governor.
John A. Sten, Boston, for Representative Shawn C. Dooley, amicus curiae, submitted a brief.
Elissa Flynn-Poppey, Emily Kanstroom Musgrave, & Andrew Nathanson, Boston, for Massachusetts Health & Hospital Association & others, amici curiae, submitted a brief.
Present: Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.3
On March 10, 2020, Governor Charles D. Baker, Jr., declared a state of emergency in the Commonwealth of Massachusetts in response to the pandemic arising from COVID-19, a respiratory illness caused by a novel coronavirus. See Governor's Declaration of Emergency, Executive Order No. 591. He did so under the Civil Defense Act (CDA), St. 1950, c. 639, and G. L. c. 17, § 2A. At the time of the emergency declaration, Massachusetts had about one hundred COVID-19 cases and was facing its first outbreak. Since the Governor declared the state of emergency, he has issued numerous COVID-19 emergency orders (emergency orders). The emergency orders placed restrictions on daily activities, which, among other things, prohibited gatherings of more than ten people; suspended in-person instruction at schools; ordered restaurants and bars to suspend on-premises service; and required all businesses and other organizations not providing designated COVID-19 "essential services"4 to close premises to workers, customers, and the public. As the public health data improved, the Governor announced a phased reopening plan, in which he classified business and organization types in different reopening phases. See Order Implementing a Phased Reopening of Workplaces and Imposing Workplace Safety Measures to Address COVID-19, COVID-19 Order No. 33 (May 18, 2020).
COVID-19 has taken a devastating toll on the Commonwealth, the United States, and the world. As of this writing, in Massachusetts alone, over 250,000 people have been infected and over 10,000 people have died. During the April 2020 surge in Massachusetts, the number of infections often exceeded 1,500 per day and there were more than one hundred deaths per day from COVID-19 for the majority of the month. In addition to the medical toll COVID-19 has inflicted, the personal toll resulting from the virus and containment measures has been immeasurable. Behind every infection and every death are those who could not visit loved ones in the hospital due to visitation restrictions, or who could not grieve the loss of loved ones with family and friends in the traditional manner. Family and friends had to isolate from one another, and visiting a loved one in another country became impossible, or nearly so. COVID-19 and the attendant containment measures have also resulted in high unemployment, economic hardship, and shuttered businesses.
In June 2020, the plaintiffs5 filed a complaint in the Superior Court, seeking declaratory judgment and injunctive relief and challenging the Governor's declaration of a state of emergency and the emergency orders as unauthorized and unconstitutional.6 The parties agreed to defer seeking preliminary injunctive relief from the Superior Court and jointly petitioned for transfer of the case from the Superior Court to a single justice of this court for reservation and report. The single justice granted the petition, and the case is now before us.
We conclude that the CDA provides authority for the Governor's March 10, 2020, declaration of a state of emergency in response to the COVID-19 pandemic and for the issuance of the subsequent emergency orders; the emergency orders do not violate art. 30 of the Massachusetts Declaration of Rights; and the emergency orders do not violate the plaintiffs' Federal or State constitutional rights to procedural and substantive due process or free assembly.7
Background. 1. COVID-19. Patients with COVID-19 may be asymptomatic, may have a mild respiratory illness, or may develop severe complications leading to the need for hospitalization, and even death. The virus spreads primarily from person to person but can also spread through a person contacting a surface that has the virus on it and then touching his or her mouth, nose, or eyes. A person can be asymptomatic or presymptomatic and still spread the virus. Medical experts have identified ways in which the spread of the virus can be curtailed, which include wearing a cloth face mask, social distancing,8 quarantining when infected or exposed to the virus, hand washing, and cleaning frequently touched surfaces. People with certain underlying medical conditions and older adults are at a higher risk of developing severe illness from COVID-19. At this time, there is no cure and effective vaccines have not yet been distributed.
COVID-19 emerged at around the start of 2020 in China, and within months it spread around the world. On January 11, 2020, the first known death caused by COVID-19 was reported in China. Later in January, a man in the State of Washington became the first confirmed case in the United States. On January 30, the World Health Organization (WHO) declared "a public health emergency of international concern," and in response to the growing outbreak, the President's administration implemented restrictions on travel from China.9
On February 29, 2020, the United States reported that an individual in Washington became the country's first death from COVID-19.10 On March 11, WHO declared the coronavirus outbreak a pandemic, and on March 13, the President declared a national emergency.
2. The Governor's declaration of a state of emergency. On March 10, 2020, the Governor declared a state of emergency, "to protect the health and welfare of the people of the Commonwealth" and to "facilitate and expedite the use of Commonwealth resources and deployment of federal and interstate resources to protect persons from the impacts of the spread of COVID-19." See Executive Order No. 591. He declared the state of emergency pursuant to the powers provided in the CDA11 and in G. L. c. 17, § 2A.12 Id. The state of emergency was effective immediately and remained in effect "until notice is given, pursuant to [the Governor's] judgment, that the state of emergency no longer exists." Id.
3. The emergency orders. From early March to May 2020, the number of COVID-19 infections and deaths from COVID-19 in the Commonwealth increased at a grim rate. The Commonwealth faced outbreaks at long-term care facilities, fear that a surge would overwhelm hospitals, and uncertainty about the future.13 Against that backdrop, the Governor issued numerous emergency orders, aimed first at efforts to "flatten the curve," i.e., to reduce the number of cases at a given time. Through the emergency orders, the Governor, among other things, banned large gatherings;14 suspended all in-person instruction at public and private elementary and secondary schools in the Commonwealth;15 banned on-premises consumption of food or drink at restaurants and bars; suspended all child care operations but established emergency child care for certain children; designated specified service and production sectors as "COVID-19 Essential Services," which were "urged to continue operations during the state of emergency," and ordered businesses that did not provide essential services to close their physical workspaces and facilities;16 mandated wearing a face covering when social distancing was not possible; and mandated a fourteen-day quarantine for travelers arriving in Massachusetts, unless traveling from a specified State, providing a negative COVID-19 test, or otherwise falling within one of the exceptions. Certain orders contained language about the penalties for violations. For example, violation of Order No. 13, which limited gatherings to no more than ten people and established COVID-19 essential services, would result in criminal penalty under § 8 of the CDA or a civil fine of up to $300 per violation. Order Assuring Continued Operation of Essential Services in the Commonwealth, Closing Certain Workplaces, and Prohibiting Gatherings of More Than 10 People, COVID-19 Order No. 13 (Mar. 23, 2020) (Order No. 13).
As the public health data improved, the Governor began transitioning the emergency orders to "reopening" the Commonwealth. On May 18, 2020, the Governor implemented a phased reopening plan. Order Implementing a Phased Reopening of Workplaces and Imposing Workplace Safety Measures to Address COVID-19, COVID-19 Order No. 33. The plan established phases in which categorized businesses and organizations could reopen, subject to workplace safety rules set forth in the plan. Id. Phase one included businesses that could open first, including construction, places of worship,17 and firearms retailers and shooting ranges; and businesses that could open second, including hair salons and barber shops, general use offices, and pet groomers. On June 1, the Governor announced the businesses in phases two, three, and four, which could reopen when the Governor authorized it in subsequent orders. Order Clarifying the Progression of the Commonwealth's Phased Workplace Reopening Plan and Authorizing Certain Re-opening Preparations at Phase II Workplaces, COVID-19 Order. No. 35. Phase two included retail stores, restaurants, golf facilities, and day camps. Phase three businesses included casino gaming floors, fitness centers and health clubs, museums, and aquariums. Phase four included amusement parks, street festivals and parades, and large capacity venues used for entertainment, group or spectator sports, business, and cultural events.18 On June 6, the Governor issued an order that phase two businesses could reopen in two steps, the first taking place immediately and including services such as outdoor table...
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