Updated: Mar 31, 2021
HARTFORD, CT (March 29, 2021) - The CT Supreme Court issued the long-awaited Casey v. Lamont decision today, the case brought by a Milford bar owner against the Governor, challenging his executive orders which crippled her business. Here is our summary of the 30-page decision, which is relevant to our school mask lawsuit (although we have claims that are factually and legally distinct):
1. Conn. Gen. Stat. (C.G.S.) § 28-9, which provides the Governor with the authority to issue executive orders during a “serious disaster,” does not violate the Connecticut Constitution.
2. The COVID-19 pandemic is a “serious disaster” contemplated by C.G.S. § 28-9. Although C.G.S. § 28-9 does not define the term “serious disaster,” the Court adopts the definition of “major disaster” found in § 28-1, which is as ‘‘any catastrophe including, but not limited to, any hurricane, tornado, storm, high water, wind-driven water, tidal wave, tsunami, earthquake, volcanic eruption, landslide, mud-slide, snowstorm or drought, or, regardless of cause, any fire, flood, explosion, or man-made disaster in any part of this state…” Although COVID-19 was not a weather-related event like most of the things on this list, the fact that this definition begins with the phrase “including but not limited to” shows that the legislature did not intend this list to be exhaustive, and in any event, it would be an absurd result for the statute to be read so as to allow the governor to “declare a civil preparedness emergency for an event such as a snowstorm, but not for the worst pandemic that has impacted the state in more than one century.” So since COVID-19 constitutes a “catastrophe” under C.G.S. 28-1, and the Governor determined that it was necessary to declare a civil preparedness emergency to address it, the Court concludes that “the ‘catastrophe’ necessarily is both a ‘major disaster’ and a ‘serious disaster.’”
3. Governor Lamont’s Executive Orders closing bars and restaurants, or limiting them to takeout service only, were permissible because they “fell within Governor Lamont’s authority under § 28-9 (b) (7) to ‘take such other steps as are reasonably necessary in the light of the emergency to protect the health, safety and welfare of the people of the state . . . .’ ’’ Since people drinking alcohol in bars congregate and socialize in close proximity to one another, and the Governor’s objective was to stop the spread of the virus by keeping people at a distance from one another, the orders were reasonable. Even the plaintiffs did not contend that the orders were unreasonable. The Court concludes that Governor Lamont did not exceed his statutory authority.
4. The last question the Court addresses is whether “§ 28-9 (b) (1) and (7) is an unconstitutional delegation by the General Assembly of its legislative powers to the governor, in violation of the separation of power provision of the Connecticut constitution.” The Court concludes that it is not, for several reasons. First, no one branch of government governs by itself; the legislature does not enact laws unilaterally, but rather does so in cooperation with the executive branch (i.e., the Governor reviews legislation after it passes both chambers of the legislature, and decides whether to sign it into law, or reject it and request changes).
The Court says that C.G.S. § 28-9 is sufficiently narrow in scope, and has enough legislative oversight, that it is not an impermissible grant of authority to the Governor. The Governor can modify or suspend a statute, regulation, or requirement only if it is “in conflict with the efficient and expeditious execution of civil preparedness functions or the protection of the public health.’’
The Governor can take action “under subsection (b) (7) only after he has
proclaimed a civil preparedness emergency, and his actions are limited to those that are reasonably necessary to protect the health, safety, and welfare of the people of this state. Moreover, the governor may act only to the extent that the health, safety, and welfare of the people are implicated by this particular serious disaster.” The Court admits that (b)(1) and (7) provide a broad grant of authority to the Governor, but reasons that this is permissible because it is not “limitless or standardless authority,” and twice quotes Chief Justice John Roberts in the recent U.S. Supreme Court decision South Bay United Pentecostal Church v. Newsom, U.S. , 140 S. Ct. 1613, 207 L. Ed. 2d 154 (2020): ‘‘[t]he precise question of when restrictions on particular social activities should be lifted during the pandemic is a dynamic and fact-intensive matter subject to reasonable disagreement. . . . When [elected] officials undertake . . . to act in areas fraught with medical and scientific uncertainties, their latitude must be especially broad.’’
Although the legislative oversight of executive authority has not been as strong as it has been in some other states, it has not been “altogether lacking” in Connecticut. The legislature’s Declaration of a Public Health Emergency Committee met twice since the initial emergency declaration, on the first occasion deciding not to convene to vote on whether to veto the Governor’s declaration, and on the second voting not to approve a motion to veto the second declaration. The Court added, “We take this inaction as an indication of the committee’s acquiescence in Governor Lamont’s actions pursuant to his public health emergency authority.” The second renewal of Governor’s emergency declaration was not at issue in this case, as it had not occurred at the time the case was argued. Other state supreme courts have also recently ruled that the legislature’s grant of emergency powers to the Governor during the pandemic did not the violate the separation of powers provisions of their state constitutions.
Some additional important quotes from the decision:
“Should the plaintiffs seek to impose greater oversight of the governor’s authority under the statutory scheme, whether in the context of a public health emergency or a civil preparedness emergency, the proper avenue is through an amendment to the statute through the legislature, not this court.”
“As long as Governor Lamont is acting within this admittedly broad statutory and constitutional authority—which we conclude that he is—it is not the job of this court to second-guess those policy decisions.”
See also Footnote 11, most relevant to our school mask lawsuit:
11 We acknowledge that the governor has twice renewed the civil prepared-
ness emergency and, at the same time, declared new civil preparedness emergencies, and has renewed the executive orders modifying or suspending statutes and regulations. The statutory six month temporal limitation, however, requires the governor, at a minimum, to continuously evaluate the necessity of the executive orders and to justify their continued existence. As we discuss hereinafter, although this is a broad grant of authority, and there may well be instances in which a challenger to the governor’s continued actions can demonstrate that they have lasted an improper duration, that issue is not squarely before us, and nothing in this opinion should be construed as offering an opinion on that separate issue. Indeed, the plaintiffs do not challenge the governor’s renewal of the emergencies. Similarly, the plaintiffs acknowledge that they ‘‘are not challenging the good intentions of [Governor Lamont] in issuing his executive orders’’ and ‘‘are not asking [this] court to second-guess the policy judgments of [Governor Lamont] or to determine whether his executive orders and the sector rules make sense or are fair.’’