The Connecticut Supreme Court debated on Wednesday whether a legal challenge to the governor’s emergency powers in the first two years of the COVID-19 pandemic was moot or an opportunity to legally review them ahead of a future crisis. .
During oral arguments on the first day of the court’s new term, the judges heatedly questioned opposing counsel on issues arising from the delegation of sweeping powers exercised by the executive branch, beginning in March 2020.
Assistant Attorney General Timothy Holzman said the case is moot: A school mask warrant at the heart of the case was dropped in February by his clients, Governor Ned Lamont and Education Commissioner Charlene M. Russell Tucker.
Norm Pattis, representing the CT Freedom Alliance in its challenge to the mask mandate and other emergency actions, said the lawsuit should be able to pass a key legal test: if the case is moot, the case raises- Are there questions likely to be repeated?
“We’ve had extraordinary times over the past few years, and that begs the question of how we will govern ourselves if we endure extraordinary times again,” Pattis said.
Pattis wryly claimed that four of the five justices heard on appeal wore masks, effectively supporting his contention that many of the issues raised over the past two years could become relevant again.
“Four out of five of you are wearing masks, probably because you discern a risk to yourself or your loved ones,” Pattis said.
Judge Steven D. Ecker, who did not wear a mask, challenged Pattis on the specific issues in court, given that the mask mandate is long gone and the legislature has passed laws codifying many of the governor’s executive orders. .
But Ecker later warned Holzman that the legislature may have passed special laws related to emergency powers, but it didn’t take the opportunity to make permanent changes that could clarify how long emergency powers last. can proceed without executive orders being subject to more formal review.
“The claims Mr. Pattis makes are not frivolous,” Ecker said.
Judge Gregory T. D’Auria, who represented the state before the Supreme Court as the attorney general’s lead appellate counsel, said the evolution of authority for the series of emergency declarations was puzzling .
“Having been somewhat in your position before, I wonder why the state wouldn’t want us to answer these questions,” D’Auria said. “What doesn’t the state really want us to decide? »
“Well, I don’t think there’s anything the state doesn’t want the court to decide,” Holzman said.
But he noted that the court “generally refuses to consider important constitutional issues when it is not required to do so”, and that there is a risk in doing so in hypothetical circumstances.
“And I think that given that the mandate has been repealed, there is no real way of knowing what the circumstances will be in the future and what the justifications will be if there is a new mask mandate,” Holzman said. “And so, a decision could run the risk of potentially hampering the state’s ability to respond flexibly to a future pandemic.”
Under the terms of his declaration of emergency authorized by the Civil Preparedness and Public Health Acts, the governor had unilateral authority to bypass normal regulatory or legislative channels, initially with bipartisan support.
To stop the spread of a virus that was quickly threatening to overwhelm hospital capacity in Connecticut, New York and New Jersey, Lamont temporarily ordered schools and businesses to close, later mandating the wearing of masks in many public places, including schools.
His first statement lasted six months. In the weeks and months that followed, the legislature tweaked the rules, providing a measure of legislative checks as the state of emergency continued under subsequent declarations.
But members of the Legislature’s Conservative caucus, all Republicans, grew restless. Two of its members, Representatives Doug Dubitsky of Chaplin and Craig Fishbein of Wallingford, are lawyers who have agreed to represent the plaintiffs in the case. They were not present on Wednesday.
One of the allegations in the original case, which was dismissed by a trial judge, was that the masks were ineffective in protecting children and that the mandate for school masks should have been subject to the review of a public audience.
Pattis said the state could defend emergency actions during time-limited disasters, not a lingering pandemic.
“The purpose of civil emergency preparedness doctrine is to respond to the meteor, to respond to the tsunami,” Pattis said. “It’s not about responding to something that has become part of our daily lives and suspending the Constitution” because we know better. It is simply not part of our Constitution.
Senior Judge Christine E. Keller disputed this claim.
“You talk about a catastrophe, a catastrophe that you describe as the violation of the separation of powers,” Keller said. “What about the disaster we were facing in 2020, with the bodies of the dead piling up in hospitals because there was no more room for them?”
“There are no non-hysterical exceptions to the Bill of Rights or the requirements of the State Constitution,” Pattis said. “For example, among the bodies that were piled up, less than 1% were children. Almost no children died during the pandemic.
Keller responded that there are other reasons children and others wear masks, such as to prevent the transmission of COVID to the most vulnerable members of society.
“Should we have a mask mandate for all of us in perpetuity, because some of us are vulnerable. Is that what you say? Pattis said.
“We don’t have a mask mandate at this time,” Keller said.
“But should we? Pattis said. “On this logic, justice, because there is a vulnerable person in Harford, we should all wear masks and be selfless?”
A minute later, Holzman walked over to the lectern.
“The school mask mandate that the Department of Education put in place was a reasonable and widely accepted safety measure that was designed to help ensure that more than 500,000 Connecticut public school students can safely access to in-person learning throughout the pandemic,” Holzman said.
The court should not hear Pattis’ concerns and arguments because his appeal is moot, he said.
“On Feb. 28, the Department of Education formally revoked mask mandates and they haven’t reinstated it,” Holzman said, “so there’s no practical relief that this court could give to the one of the plaintiffs’ claims.”