On December 10, the Massachusetts Supreme Judicial Court issued a unanimous opinion in Dawn Desrosiers and others v. Governor Charlie Baker upholding Massachusetts Governor Charlie Baker’s authority to use emergency orders to slow the spread of COVID-19 under the Massachusetts Civil Defense Act (CDA), which provides that the Governor can declare a state of emergency in specified circumstances. Mintz played an influential role in attaining this important ruling, filing an amicus brief in support of the Governor’s gubernatorial authority under the CDA on behalf of three Massachusetts health care provider membership organizations.
The purpose of the CDA is to “minimize and repair injury and damage associated with disasters resulting from—among other things—natural causes.” Since declaring a State of Emergency in Massachusetts on March 10, as the virus proliferated across the Commonwealth, Governor Baker has issued numerous emergency orders that placed restrictions on daily activities, including but not limited to: prohibiting gatherings of more than ten people; suspending in-person instruction at schools and on-premises service at restaurants and bars; and requiring businesses and other organizations not designated as COVID-19 “essential services” to close premises to workers, customers, and the public. After public health data improved, in part as a result of these emergency measures, Governor Baker implemented a phased reopening plan.
The lawsuit was filed against Governor Baker in June on behalf of plaintiffs — a group of businesses including two hair salons, a tanning salon, a boxing gym, a conference center, and others — by the New Civil Liberties Alliance. Plaintiffs argued, among other things, that the Governor’s emergency declaration and emergency orders are unenforceable due to certain specifications of the CDA, and furthermore, that his actions violate the separation of powers under Article 30 of the Massachusetts Declaration of Rights and plaintiffs’ federal and state constitutional rights to due process and assembly.
In early September, Mintz filed a brief in the case on behalf of amici curiae the Massachusetts Health & Hospital Association (MHA), a voluntary nonprofit organization that serves as the voice for hospitals, health care systems, other care providers in the Commonwealth; the Massachusetts Medical Society (MMS), the oldest continuously operating state medical association in the United States, which is dedicated to educating and advocating for the patients and physicians of Massachusetts; and the Organization of Nurse Leaders (ONL), a nonprofit professional membership organization for current and aspiring nurse leaders, in support of Governor Baker’s gubernatorial authority under the CDA.
Mintz’s amicus brief argued that Governor Baker has exercised his authority properly under the CDA, and separately, provided insight into the necessity for and efficacy of the Governor’s actions from the perspective of MHA, MMS, and ONL, whose members are frontline workers in the Commonwealth’s ongoing battle against the pandemic. The brief stated, “to put it simply, that battle cannot be won (and could yet be lost) if the Governor’s office is prevented from using the authority granted to it by the CDA.” Additionally, “The levels of sickness and death caused by the virus, and accompanying strains placed on our health care infrastructure and workforce, have been unprecedented in modern Massachusetts history.”
Associate Justice Elspeth B. Cypher’s 41-page opinion aligned with Mintz’s key argument, upholding that Governor Baker’s power to declare a state of emergency under the CDA extends to the COVID-19 pandemic through the phrase “other natural causes.” The opinion stated, "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.’"
The Mintz team that drafted and filed the amicus brief in Desrosiers v. Baker was led by Member and Chair of the firm’s Government Law Practice Elissa Flynn-Poppey, along with Co-chairs of the firm’s Appellate Practice Group Emily Kanstroom Musgrave (Member) and Andrew Nathanson (Special Counsel).
Separately, Mintz has joined forces to help slow the spread and mitigate the effects of COVID-19 in Massachusetts through various pro bono efforts. For example, Ms. Flynn-Poppey advised Governor Baker and First Lady Lauren Baker on the launch of the Massachusetts COVID-19 Relief Fund to support those across the state most impacted by the pandemic. She continues to provide pro bono legal counsel to the Fund. In addition, Ms. Flynn-Poppey was a member of the Mintz team that provided pro bono legal counsel to global health nonprofit Partners in Health regarding its groundbreaking Community Tracing Collaborative to contain the spread of COVID-19 and increase the state’s capacity for contact tracing.