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CLT UPDATE
Wednesday, September 16, 2020
A Crucial Time For
Liberty And The Constitution
Jump directly
to CLT's Commentary on the News
|
Most Relevant News Excerpts
(Full news reports follow
Commentary)
|
|
State-imposed
shutdown orders that required people to stay home and placed
limits on public gatherings aimed at halting the spread of
COVID-19 in Pennsylvania were “well-intentioned” but
unconstitutional, a federal court in Pittsburgh ruled
Monday.
“Good intentions
toward a laudable end are not enough to uphold governmental
action against a constitutional challenge,” U.S. District
Judge William S. Stickman IV wrote in a 66-page ruling that
said Gov. Tom Wolf’s actions violated constitutional
guarantees of the rights to free assembly, due process and
equal protection.
As the pandemic
hit Pennsylvania in March, Wolf and Health Secretary Dr.
Rachel Levine ordered nonessential businesses to close,
imposed stay-at-home orders and limited public gatherings in
a bid to disrupt transmission of the deadly airborne virus
that has killed more than 7,800 residents and sickened more
than 145,000....
The ruling means
that current restrictions, including ones that limit the
size of indoor gatherings to 25 people and outdoor
gatherings to 250 people, can’t be enforced, according to
attorney Thomas W. King III, who represented the plaintiffs.
“It’s really 100%
in our favor. The court found in all respects that the
orders issued by the governor and the secretary of health
were unconstitutional. What it means is they can’t do it
again, and they should not have done it in the past,” King
said....
In his opinion,
Stickman wrote that the case was about weighing the
government’s power to infringe on people’s rights in order
to protect the public. He noted that the greatest threats to
constitutional liberties can arise when the intent is good,
especially in emergencies.
“In an emergency,
even a vigilant public may let down its guard over its
constitutional liberties only to find that liberties, once
relinquished, are hard to recoup and that restrictions —
while expedient in the face of an emergency situation — may
persist long after immediate danger has passed,” wrote
Stickman, an appointee of President Donald Trump.
The (Lehigh
Valley, Penn.) Morning Call
Monday, September 14, 2020
Federal court: Gov. Wolf’s COVID restrictions on businesses
and gatherings are unconstitutional
By Daniel Patrick Sheehan
U.S. District
Judge William Stickman IV, a Trump appointee, said in his
opinion that COVID-19 orders from Wolf and Pennsylvania
Secretary of Health Rachel Levine violated and continue to
violate the First Amendment right to freedom of assembly and
the due process and equal protection clauses of the 14th
Amendment.
The efforts to
stop the spread of the coronavirus “were undertaken with the
good intention of addressing a public health emergency,”
Stickman wrote.
“But even in an
emergency, the authority of government is not unfettered,”
he added.
“There is no
question that this Country has faced, and will face,
emergencies of every sort,” he wrote. “But the solution to a
national crisis can never be permitted to supersede the
commitment to individual liberty that stands as the
foundation of the American experiment.”
The Hill
Monday, September 14, 2020
Federal judge rules Pennsylvania's coronavirus orders are
unconstitutional
By Justine Coleman
Kentucky Gov. Andy
Beshear and Attorney General Daniel Cameron each submitted
opposing briefs Friday to the Kentucky Supreme Court as part
of the commonwealth's high-profile case regarding Beshear's
COVID-19 emergency orders.
The orders were in
jeopardy after Boone Circuit Judge Rick Brueggemann
indicated on July 16 he would side with Cameron in his
attempt to block them and stop Beshear from issuing new
ones.
Before Brueggemann
published his ruling, though, the Kentucky Supreme Court
issued a stay on July 17, effectively halting the rulings in
both the Boone County case and a similar one in Scott County
until the high court has a chance to review the cases.
Oral arguments
before the court are scheduled for Sept. 17.
In the governor's
brief, Beshear's counsel argues the orders have "saved
thousands of lives" and the governor has the constitutional
authority to invoke emergency powers during a pandemic....
Cameron's brief
argues Beshear's orders violate constitutionally mandated
separation of powers and infringe on individuals'
continually protected rights to earn a living and to be free
"from the accumulation and exercise of absolute and
arbitrary government power."
The attorney
general's counsel also says Beshear cannot exercise power
with respect to an emergency until local governments inform
him that they are "incapable of handling the emergency
themselves," per state statute. Beshear disputed this
understanding of the statute in his brief.
The brief also
points to Beshear's orders facing a history of legal
challenges: "Tellingly, he has not won a single case."
The filings of the
opposing briefs is the latest step in the legal battle
between two of Kentucky's top constitutional officers.
The (Louisville,
KY) Courier Journal
August 29, 2020
Beshear, Cameron submit briefs to state Supreme Court in
COVID-19 emergency orders case
The sudden death
of Supreme Judicial Court Chief Justice Ralph D. Gants has
left the Massachusetts bar and broader political world
mourning a jurist considered a “giant” within the court’s
centuries-long history.
The tragedy also
has opened the door for something rare, and perhaps
unprecedented, in its modern iteration: Governor Charlie
Baker could select an entire high court of his own nominees.
With Justice
Barbara A. Lenk nearing her mandatory retirement in
December, Baker must now weigh his sixth and seventh
nominations — including his first for chief justice — to the
seven-person bench. Should his picks be confirmed, the
Republican governor will finish a historic remaking of the
oldest continuous sitting appellate court in the Western
hemisphere.
No governor since
Francis W. Sargent, whose final term ended nearly 50 years
ago, has tapped six new high-court justices while in office,
the Globe has reported. And it’s unclear if any governor has
named as many new SJC jurists as Baker will have since the
early years of the state’s constitution.
Alan Rogers, a
Boston College history professor who focuses on American
legal history, said he’s aware of one governor who nominated
seven new justices to the state’s highest court: John
Hancock.
“The John
Hancock,” Rogers said of the Commonwealth’s first and third
governor and the first person to sign the Declaration of
Independence. Originally a five-person bench, the SJC didn’t
add its seventh seat until 1873, 80 years after Hancock’s
death....
[Baker's] team had
been anticipating the departure of Lenk, 69, who had
originally intended to retire in August, but later delayed
her departure until Dec. 1 so the high court wouldn’t be
short one justice when oral arguments began this month, a
court spokeswoman told the Globe last month....
Baker’s office did
not address questions of whether the governor intends to
make his selection for chief justice from the current court,
saying only that he can, but is not required to, pull from
its ranks....
While the court
can continue to function with just six justices, a vacancy
opens the possibility of split rulings. It also adds to the
work being handled by the remaining judges during an already
demanding time in which the pandemic has stressed the
state’s resources and, like in other government agencies,
scrambled the court’s normal operations.
The SJC, for
example, is already weighing a challenge to the sweeping
emergency powers Baker has wielded amid the novel
coronavirus pandemic, a decision Gants had been expected to
participate in even though he wasn’t present for oral
arguments last week.
The Boston Globe
Tuesday, September 15, 2020
Baker, already faced with a historic chance to reshape
judiciary,
could now name the entire SJC |
Chip Ford's CLT
Commentary
"Experience
should teach us to be most on our guard to
protect liberty when the government's purposes
are beneficent. Men born to freedom are
naturally alert to repel invasion of their
liberty by evil-minded rulers. The
greatest dangers to liberty lurk in insidious
encroachment by men of zeal, well-meaning but
without understanding."
—
U.S. Supreme
Court Justice Louis D. Brandeis
Olmstead v. United States, 277 U.S. 438, 479
(1928)
“There are
men in all ages who mean to govern well, but
they mean to govern. They promise to
be good masters, but they mean to be
masters.”
—
Daniel
Webster
Massachusetts U.S. Congressman: March 4,
1823 – May 30, 1827
U.S. Senator from
Massachusetts: March 4, 1845 – July 22, 1850
U.S. Secretary of State: July 23, 1850 –
October 24, 1852
Last Friday the state Supreme Judicial
Court heard oral arguments in the lawsuit against His Majesty the Royal
Governor of Maskachusetts's unilateral shutdown edicts (State House News
Service, September 11, Attorney: Legislature Consented to Baker’s Pandemic Orders
— Oral Arguments Aired Before State's High
Court"):
An
attorney representing business owners and religious
leaders who sued the Baker administration argued in
court Friday that Baker has "turned the government
upside down" by taking significant individual
action, rather than executing laws passed by the
Legislature, during the public health crisis.
"At this point, the Legislature is left to approve
or disapprove of the governor's policy choices,"
Michael DeGrandis, a lawyer with the New Civil
Liberties Alliance, told justices. "That's not how
it's supposed to work. The governor is merely
supposed to execute the policy choices of the
Legislature. For the Legislature to make a change,
the Legislature would also have to have a veto-proof
majority to do so. That is standing the government
on its head. That's not a republican form of
government." . . .
At
the start of the hearing, Justice Frank Gaziano said
that Chief Justice Ralph Gants
—
who underwent surgery following a heart attack one
week ago —
would follow the proceedings and planned to
participate in the final decision.
A lot has happened this
week, beginning with the death of Supreme Judicial Court
Chief Justice Ralph Gants on Monday. This reduces
the high court to six justices (and no chief justice),
five Baker appointees and one appointed by Deval Patrick
— and with Justice Barbara Lenk
due to retire in December it will soon be a high court
comprised entirely of Baker appointees. (See The Boston
Globe below report: "Baker, already faced with a
historic chance to reshape judiciary, could now name the
entire SJC")
While that throws
sand in the gears of the challenge now before the court, the lawsuit may
soon become irrelevant.
The biggest (and
greatest) news arrived on Monday as well. U.S. District Judge
William Stickman IV (a Trump appointee) ruled in the federal court of
Pittsburgh that Pennsylvania Democrat Gov. Tom Wolf's similar
magisterial lockdown of the Keystone State was unconstitutional and
rejected the governor's decrees. According to news reports (see
full reports below):
State-imposed shutdown orders
that required people to stay home and placed limits
on public gatherings aimed at halting the spread of
COVID-19 in Pennsylvania were “well-intentioned” but
unconstitutional, a federal court in Pittsburgh
ruled Monday.
“Good intentions toward a
laudable end are not enough to uphold governmental
action against a constitutional challenge,” U.S.
District Judge William S. Stickman IV wrote in a
66-page ruling that said Gov. Tom Wolf’s actions
violated constitutional guarantees of the rights to
free assembly, due process and equal protection. . .
.
In his opinion, Stickman wrote
that the case was about weighing the government’s
power to infringe on people’s rights in order to
protect the public. He noted that the greatest
threats to constitutional liberties can arise when
the intent is good, especially in emergencies.
“In an emergency, even a
vigilant public may let down its guard over its
constitutional liberties only to find that
liberties, once relinquished, are hard to recoup and
that restrictions — while expedient in the face of
an emergency situation — may persist long after
immediate danger has passed,” wrote Stickman. . . .
The efforts to stop the spread
of the coronavirus “were undertaken with the good
intention of addressing a public health emergency,”
Stickman wrote.
“But even in an emergency, the
authority of government is not unfettered,” he
added.
“There is no question that this
Country has faced, and will face, emergencies of
every sort,” he wrote. “But the solution to a
national crisis can never be permitted to supersede
the commitment to individual liberty that stands as
the foundation of the American experiment.”
Push
back has finally arrived and — if this ruling is any
indication — liberty is soon to be restored, tyranny
overturned.
The Massachusetts
judicial challenge of lockdowns was heard by the state's highest court
on Friday. Tomorrow Kentucky's highest court will hear the
challenge of Kentucky's Democrat governor's tyrannical edicts. On
August 29 The Louisville Courier Journal reported:
Kentucky Gov. Andy Beshear and
Attorney General Daniel Cameron each submitted
opposing briefs Friday to the Kentucky Supreme Court
as part of the commonwealth's high-profile case
regarding Beshear's COVID-19 emergency orders.
The orders were in jeopardy
after Boone Circuit Judge Rick Brueggemann indicated
on July 16 he would side with Cameron in his attempt
to block them and stop Beshear from issuing new
ones.
Before Brueggemann published
his ruling, though, the Kentucky Supreme Court
issued a stay on July 17, effectively halting the
rulings in both the Boone County case and a similar
one in Scott County until the high court has a
chance to review the cases.
Oral arguments before the court
are scheduled for Sept. 17.
In the governor's brief,
Beshear's counsel argues the orders have "saved
thousands of lives" and the governor has the
constitutional authority to invoke emergency powers
during a pandemic....
Cameron's brief argues
Beshear's orders violate constitutionally mandated
separation of powers and infringe on individuals'
continually protected rights to earn a living and to
be free "from the accumulation and exercise of
absolute and arbitrary government power."
The attorney general's counsel
also says Beshear cannot exercise power with respect
to an emergency until local governments inform him
that they are "incapable of handling the emergency
themselves," per state statute. Beshear disputed
this understanding of the statute in his brief.
The brief also points to
Beshear's orders facing a history of legal
challenges: "Tellingly, he has not won a single
case."
The filings of the opposing
briefs is the latest step in the legal battle
between two of Kentucky's top constitutional
officers.
The
wheels of justice surely do grind slowly, often
excruciatingly so — occasionally
coming to the rescue but too often too late, long after
the damage has been inflicted and allowed to fester and
metastasize.
But better late than
never, I suppose.
|
 |
 |
|
Chip Ford
Executive Director |
|
|
|
Full News Reports Follow
(excerpted above) |
|
The (Lehigh
Valley, Penn.) Morning Call
Monday, September 14, 2020
Federal court: Gov. Wolf’s COVID restrictions on businesses
and gatherings are unconstitutional
By Daniel Patrick Sheehan
State-imposed shutdown orders that required people to stay
home and placed limits on public gatherings aimed at halting
the spread of COVID-19 in Pennsylvania were
“well-intentioned” but unconstitutional, a federal court in
Pittsburgh ruled Monday.
“Good intentions toward a laudable end are not enough to
uphold governmental action against a constitutional
challenge,” U.S. District Judge William S. Stickman IV wrote
in a 66-page ruling that said Gov. Tom Wolf’s actions
violated constitutional guarantees of the rights to free
assembly, due process and equal protection.
As the pandemic hit Pennsylvania in March, Wolf and Health
Secretary Dr. Rachel Levine ordered nonessential businesses
to close, imposed stay-at-home orders and limited public
gatherings in a bid to disrupt transmission of the deadly
airborne virus that has killed more than 7,800 residents and
sickened more than 145,000.
Wolf, a Democrat, has since lifted many of the restrictions,
allowing businesses to reopen and canceling a statewide
stay-at-home order.
The ruling means that current restrictions, including ones
that limit the size of indoor gatherings to 25 people and
outdoor gatherings to 250 people, can’t be enforced,
according to attorney Thomas W. King III, who represented
the plaintiffs.
“It’s really 100% in our favor. The court found in all
respects that the orders issued by the governor and the
secretary of health were unconstitutional. What it means is
they can’t do it again, and they should not have done it in
the past,” King said.
The ruling was praised by state Republican leaders and
small-business associations. The National Federation of
Independent Business, which represents 13,000 small
businesses in Pennsylvania, issued a statement reflecting on
what the association deemed contradictory state directives
that allowed big-box stores to stay open while small
businesses had to remain closed early in the pandemic.
In his opinion, Stickman wrote that the case was about
weighing the government’s power to infringe on people’s
rights in order to protect the public. He noted that the
greatest threats to constitutional liberties can arise when
the intent is good, especially in emergencies.
“In an emergency, even a vigilant public may let down its
guard over its constitutional liberties only to find that
liberties, once relinquished, are hard to recoup and that
restrictions — while expedient in the face of an emergency
situation — may persist long after immediate danger has
passed,” wrote Stickman, an appointee of President Donald
Trump.
Wolf to appeal
Wolf spokesperson Lyndsay Kensinger said the administration
is disappointed with the decision and will ask Stickman to
allow restrictions to remain in place while it appeals.
Courts had consistently rejected challenges to Wolf’s power
to order businesses to close during the pandemic, and many
other governors, Republican and Democrat, undertook similar
measures as the virus spread across the country.
“The actions taken by the administration were mirrored by
governors across the country and saved, and continue to save
lives in the absence of federal action,” Kensinger said.
She added that the decision is especially worrying as
Pennsylvania and other states face the possible resurgence
of COVID-19 and the flu in the fall and winter.
The ruling applies only to limits on the number of people at
indoor and outdoor gatherings as well as the stay-at-home
and business-closure orders that were lifted this summer. It
does not affect any other mitigation orders announced in
July, including mandatory telework, mask-wearing, worker
safety and building safety orders.
Allentown liquor law attorney Ted Zeller said the ruling
keeps intact most of the restrictions on Pennsylvania’s bars
and restaurants. That includes the upcoming change allowing
restaurants that self-certify coronavirus safety efforts to
operate at 50% indoor capacity, up from the current 25%.
Those changes, which go into effect Sept. 21, also stop
alcohol sales at 10 p.m.
What the ruling does change, however, is in regards to
gatherings, such as a wedding at a restaurant or hotel with
a liquor license. Those venues will now be able to have
indoor gatherings that exceed 25 people, a restriction that
had stifled an important revenue stream for many hospitality
businesses.
Challenges from businesses
The federal case was filed by four counties — Washington,
Greene, Fayette and Butler — and plaintiffs included hair
salons, drive-in movie theaters, a farmers market vendor, a
horse trainer and several Republican officeholders who sued
as individuals.
“No one diminished the fact that there is a disease. We
didn’t get into an argument about the science,” King said.
“We did challenge the things that the business community and
the people in our counties found most offensive.”
King said the Wolf administration and Health Department had
the opportunity to present evidence but did not call any
medical professionals as witnesses. The state’s primary
witnesses were deputy chiefs of staff from the governor’s
office and the Department of Community and Economic
Development, which oversaw the process for businesses to
apply for waivers to the closure order, King said.
King said the plaintiffs' case also highlighted what he
called a double standard in Wolf’s attendance of a protest
and Health Secretary Dr. Rachel Levine’s secret agreement to
allow a central Pennsylvania car show with tens of thousands
of attendees to go on.
“The issue is how do you tell a church group they can’t have
more than 250 people, how can you tell President Trump he
can’t have more than 250 people?” King said.
He added that nothing in the order requires people to do
things they believe are unsafe.
“It’s all about the American way of life and people being
individually responsible for their actions,” King said.
Pennsylvania restaurants that self-certify coronavirus
safety measures can go to 50% capacity Sept. 21, Wolf says;
no alcohol sales after 10 p.m. »
Under the “red phase” of Wolf’s three-phase plan,
stay-at-home orders were imposed, only “life-sustaining”
businesses such as grocery stores were allowed to be open,
and schools and child care facilities were closed. Large
gatherings were prohibited, restaurants and bars were
limited to carry-out and delivery, and travel was
discouraged except for life-sustaining purposes.
Stickman wrote that decisions as to which businesses were
“life-sustaining” and which were not was an “arbitrary, ad
hoc process.”
The stay-at-home and business closure orders were eased in
the yellow and green phases, but the outdoor gathering limit
of 250 people prompted large events, such as Musikfest and
the Allentown Fair, to cancel their events.
Some counties, like Allegheny and Philadelphia, have their
own pandemic restrictions. King said Monday he thinks the
judge’s ruling invalidates those, as well.
Pennsylvania Speaker of the House Bryan Cutler of Lancaster
County and House Majority Leader Kerry Benninghoff of Centre
County, both Republicans, issued a joint statement praising
the ruling.
“For the millions of unemployed Pennsylvanians, the
thousands of small business owners that have seen their
livelihoods permanently ended, and all those looking for
some relief from these unilaterally imposed, inconsistent
and contradictory shutdown orders, this opinion offers some
form of hope that a return to normalcy might be on the
horizon,” they wrote.
In the statement, the lawmakers said the ruling confirmed
their argument that Wolf’s use of emergency authority is
unconstitutional, and urged the governor to work with the
General Assembly to develop a plan that keeps Pennsylvanians
safe but does not penalize them.
The Associated Press contributed to this story.
https://www.mcall.com/coronavirus/mc-nws-coronavirus-federal-ruling-wolf-restrictions-20200914-rm5zn7maq5gjzoevs5txf6pzem-story.html
The Hill
Monday, September 14, 2020
Federal judge rules Pennsylvania's coronavirus orders are
unconstitutional
By Justine Coleman
A federal judge ruled on Monday that Pennsylvania Gov. Tom
Wolf’s (D) coronavirus orders, which shut down the state,
closed businesses and limited gatherings, were
unconstitutional.
U.S. District Judge William Stickman IV, a Trump appointee,
said in his opinion that COVID-19 orders from Wolf and
Pennsylvania Secretary of Health Rachel Levine violated and
continue to violate the First Amendment right to freedom of
assembly and the due process and equal protection clauses of
the 14th Amendment.
The efforts to stop the spread of the coronavirus “were
undertaken with the good intention of addressing a public
health emergency,” Stickman wrote.
“But even in an emergency, the authority of government is
not unfettered,” he added.
“There is no question that this Country has faced, and will
face, emergencies of every sort,” he wrote. “But the
solution to a national crisis can never be permitted to
supersede the commitment to individual liberty that stands
as the foundation of the American experiment.”
Four Pennsylvania counties — Butler, Fayette, Greene and
Washington — along with Rep. Mike Kelly (R-Pa.), three state
representatives, and seven businesses and their owners
challenged the state government’s coronavirus orders. Their
lawsuit was filed in May, when these counties were in the
“red” phase that required residents to stay at home.
The governor’s office did not immediately return a request
for comment on the new ruling.
Previous rulings have rejected several challenges to Wolf’s
coronavirus orders. In July, the Pennsylvania Supreme Court
ruled the state legislature could not end the coronavirus
shutdown.
Other governors across the country took similar steps early
in the coronavirus pandemic, with most states implementing
stay-at-home orders and shutting down businesses.
Pennsylvania has since lifted most of the coronavirus
restrictions but still limits indoor gatherings to 25
people, outdoor gatherings to 250 people and indoor dining
to 25 percent occupancy. The indoor dining capacity is
expected to rise to 50 percent on Sept. 21, according to CBS
Pittsburgh.
Pennsylvania has documented 140,842 confirmed COVID-19 cases
and 7,869 deaths since the beginning of the pandemic. The
New York Times categorizes Pennsylvania as a state where
cases are “lower and staying low,” with a seven-day average
of 676 new cases per day.
https://thehill.com/regulation/court-battles/516333-federal-judge-rules-pennsylvanias-coronavirus-orders-are
The
(Louisville, KY) Courier Journal
August 29, 2020
Beshear, Cameron submit briefs to state Supreme Court in
COVID-19 emergency orders case
By Ben Tobin
Kentucky Gov. Andy Beshear and Attorney General Daniel
Cameron each submitted opposing briefs Friday to the
Kentucky Supreme Court as part of the commonwealth's
high-profile case regarding Beshear's COVID-19 emergency
orders.
The orders were in jeopardy after Boone Circuit Judge Rick
Brueggemann indicated on July 16 he would side with Cameron
in his attempt to block them and stop Beshear from issuing
new ones.
Before Brueggemann published his ruling, though, the
Kentucky Supreme Court issued a stay on July 17, effectively
halting the rulings in both the Boone County case and a
similar one in Scott County until the high court has a
chance to review the cases.
Oral arguments before the court are scheduled for Sept. 17.
In the governor's brief, Beshear's counsel argues the orders
have "saved thousands of lives" and the governor has the
constitutional authority to invoke emergency powers during a
pandemic.
"The Governor — above all else — has a constitutional duty
to protect the public safety and welfare of all Kentuckians
from this emerging and deadly disease," the brief reads.
The brief goes on to argue that the executive branch has not
violated constitutional separation of power and has not
acted unilaterally, as the General Assembly passed measures
related to COVID-19 that did not alter Beshear's executive
powers.
It also argues the judicial branch has acted on its own to
stem the spread of the coronavirus, as the Supreme Court
canceled most in-person court appearances statewide.
Lawyers for Beshear also argue that Section 1 of the
Kentucky Constitution, which grants Kentuckians fundamental
rights, does not prevent the regulation of business, "nor
would it when the state seeks to protect public health and
welfare."
A ruling against Beshear "would prevent any statewide
response to COVID-19 and would threaten the ability to
protect the public health and, in turn, Kentuckians’ lives,"
according to the brief.
Meanwhile, in the attorney general's brief, Cameron's legal
team argues that several states with fewer restrictions than
Kentucky, such as Tennessee, have a lower COVID-19 mortality
rate. Since declaring a statewide state of emergency on
March 6, Beshear has issued more than 150 orders, guidance
documents and regulations, the brief says.
"This declaration touched off a dizzying cavalcade of
orders, guidance memoranda, and regulations that impacted or
controlled nearly every aspect of Kentuckians’ lives," the
brief reads.
Cameron's brief argues Beshear's orders violate
constitutionally mandated separation of powers and infringe
on individuals' continually protected rights to earn a
living and to be free "from the accumulation and exercise of
absolute and arbitrary government power."
The attorney general's counsel also says Beshear cannot
exercise power with respect to an emergency until local
governments inform him that they are "incapable of handling
the emergency themselves," per state statute. Beshear
disputed this understanding of the statute in his brief.
The brief also points to Beshear's orders facing a history
of legal challenges: "Tellingly, he has not won a single
case."
The filings of the opposing briefs is the latest step in the
legal battle between two of Kentucky's top constitutional
officers.
In June, several Northern Kentucky businesses, including a
bakery, a child care center and Florence Speedway, filed a
lawsuit in Boone Circuit Court against Beshear's
administration, arguing its COVID-19 orders were making it
nearly impossible for them to stay financially afloat.
Related: Lawsuit goes after Gov. Andy Beshear's limits on
Florence Speedway, child care
Cameron intervened on behalf of the businesses and said soon
after Brueggemann's ruling in favor of the racetrack and
child care center that it would apply statewide.
The attorney general then filed a motion in Boone Circuit
Court that argued all of Beshear's COVID-19 emergency orders
are arbitrary and violate the constitutional rights of
Kentuckians. Brueggemann agreed, and if the Kentucky Supreme
Court hadn't stepped in, Beshear’s emergency COVID-19 orders
would have abruptly ended.
Cameron criticized Beshear once again Saturday, saying he
has "unilaterally made the law in Kentucky without input
from the General Assembly."
“These laws have drastically changed how Kentuckians can
live their lives, raise their families, operate their
businesses, and make a living," Cameron said in a statement.
"The Governor simply does not have the authority to act as a
one-man legislature, even during a pandemic.”
Meanwhile, after Cameron made his move to block Beshear's
past and future executive orders, Beshear called the action
"scary and reckless."
"I'm relieved," Beshear said July 17 following the Supreme
Court's motion to stay the Boone and Scott county cases.
"I'm relieved because I've stayed up the last two nights not
sleeping, worried about how many people would die if we
didn't have any types of rules in place."
As of Saturday evening, Kentucky has reported 47,577
COVID-19 cases and 921 coronavirus-related deaths since the
start of the pandemic in March.
The Boston
Globe
Tuesday, September 15, 2020
Baker, already faced with a historic chance to reshape
judiciary,
could now name the entire SJC
By Matt Stout
The sudden death of Supreme Judicial Court Chief Justice
Ralph D. Gants has left the Massachusetts bar and broader
political world mourning a jurist considered a “giant”
within the court’s centuries-long history.
The tragedy also has opened the door for something rare, and
perhaps unprecedented, in its modern iteration: Governor
Charlie Baker could select an entire high court of his own
nominees.
With Justice Barbara A. Lenk nearing her mandatory
retirement in December, Baker must now weigh his sixth and
seventh nominations — including his first for chief justice
— to the seven-person bench. Should his picks be confirmed,
the Republican governor will finish a historic remaking of
the oldest continuous sitting appellate court in the Western
hemisphere.
No governor since Francis W. Sargent, whose final term ended
nearly 50 years ago, has tapped six new high-court justices
while in office, the Globe has reported. And it’s unclear if
any governor has named as many new SJC jurists as Baker will
have since the early years of the state’s constitution.
Alan Rogers, a Boston College history professor who focuses
on American legal history, said he’s aware of one governor
who nominated seven new justices to the state’s highest
court: John Hancock.
“The John Hancock,” Rogers said of the Commonwealth’s
first and third governor and the first person to sign the
Declaration of Independence. Originally a five-person bench,
the SJC didn’t add its seventh seat until 1873, 80 years
after Hancock’s death.
“It would be increasingly unusual, in a modern era, for that
to happen," Rogers said of seven nominations.
The possibility is real for Baker only because of a mixture
of circumstance and tragedy.
Gants’s death at 65 shook the state’s judiciary on Monday,
prompting an outpouring for the affable, highly respected
jurist who just days earlier had disclosed he suffered a
heart attack but said he intended to resume his full duties.
After 11 years on the SJC, Gants was still four years from
facing mandatory retirement in September 2024.
Baker, speaking Tuesday at an unrelated event in Fitchburg,
indicated he had not yet considered how he would approach
filling Gants’s seat. He described his death as a “shocking
and in some ways, overwhelming event" — one, he said, made
all the more unexpected given the “energy, kinetic energy"
with which Gants lived.
“That’s a really bright light that just went out,” Baker
said. “Honestly, given the short time frame between hearing
the news about — it’s not even 24 hours — on Justice Gants,
we haven’t thought much about next steps. There is a
process. We need a few days to figure that out."
His team had been anticipating the departure of Lenk, 69,
who had originally intended to retire in August, but later
delayed her departure until Dec. 1 so the high court
wouldn’t be short one justice when oral arguments began this
month, a court spokeswoman told the Globe last month.
Amid pressure to expand the diversity of the bench, Baker
had reopened the nominating process for Lenk’s successor in
a bid to potentially expand the pool of replacements. Three
of his appointees have been white men — only Kimberly S.
Budd, a Baker nominee, is a person of color on the current
SJC — and four of his five nominees were onetime
prosecutors.
It’s a makeup that has spurred calls from legal groups for
Baker to broaden his consideration, including weighing
applicants with a background in racial justice, civil
rights, criminal defense, or legal services.
But in filling Gants’s seat, legal observers say, Baker
faces both a different chance and challenge. Traditionally,
governors have turned to the current members of the bench in
picking a chief justice, who plays both the leading legal
and administrative role within the state’s judiciary.
Baker knows those choices well. He nominated each of the
remaining judges beyond Lenk, including three at one time in
2016 in Frank M. Gaziano, David A. Lowy, and Budd. Justices
Elspeth B. Cypher and Scott L. Kafker were sworn in during
2017.
Baker’s office did not address questions of whether the
governor intends to make his selection for chief justice
from the current court, saying only that he can, but is not
required to, pull from its ranks.
“It’s a challenge for the court . . . and you are talking to
a chief justice who never served as a judge on any court,”
said former chief justice Margaret H. Marshall, who held the
role for 11 years until December 2010.
“It was exhausting work. I had another four years to go
[when I retired] and I used to say to Chief Justice Gants,
when you get to the 11th year, you really feel like you’re
running out of steam," she said.
The unexpected nature of Gants’s death could compound the
complexity of Baker’s decision-making.
While the court can continue to function with just six
justices, a vacancy opens the possibility of split rulings.
It also adds to the work being handled by the remaining
judges during an already demanding time in which the
pandemic has stressed the state’s resources and, like in
other government agencies, scrambled the court’s normal
operations.
The SJC, for example, is already weighing a challenge to the
sweeping emergency powers Baker has wielded amid the novel
coronavirus pandemic, a decision Gants had been expected to
participate in even though he wasn’t present for oral
arguments last week.
“It is a job on top of a job, to be chief justice. And being
an associate justice is a hugely demanding role" as is, said
Lisa Goodheart, who chaired the state’s Judicial Nominating
Commission under Governor Deval Patrick and was involved in
recommendations for each of his SJC selections.
Patrick picked five new justices for the court over his two
terms and nominated two chief justices, including Gants in
2014.
“He’s a giant," Goodheart said of Gants. "The loss is
profound and the need is great. I think the governor has a
daunting challenge, really. . . . To have [a vacancy] be
totally unexpected and to be the chief, that is really a
huge mountain to climb.” |
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