Casey v. LamontCasey v. Lamont
Action to enjoin the defendant from enforcing certain executive orders, and for other relief, brought to the Superior Court in the judicial district of New Haven and transferred to the judicial district of Waterbury, Complex Litigation Docket, where the case was tried to the court, Bellis, J.; judgment denying the plaintiffs’ request for injunctive and declaratory relief, and the plaintiff, upon certification by the Chief Justice pursuant to
Jonathan J. Klein, for the appellants (plaintiffs).
Philip Miller, assistant attorney general, with whom, on the brief, were William Tong, attorney general, Clare E. Kindall, solicitor general, and Alma Rose Nunley, assistant attorney general, for the appellee (defendant).
McDONALD, J. For more than one year now, the world has been in the unyielding grip of a highly virulent infectious disease that, to date, has infected approximately 127 million people worldwide and has killed more than 2.7 million individuals. Of those deaths, about 20 percent, or approximately 549,000, have been in the United States of America. In Connecticut alone, more than 305,000 people have been infected and more than 7800 have died.1 These numbers, while jarring on their own, tell but one part of the enormous toll inflicted on society since the pandemic’s onset. Around the country—indeed the world—large segments of economic activity have been severely disrupted, if not fallen into collapse, millions of people have lost their employment, many hospitals and other health-care operations have been overrun by gravely ill and dying patients, and extraordinary lockdowns ordered by government officials, in an effort to abate the rate of infection, have limited the free flow of personal and commercial activity. As this opinion is issued, it is uncertain when, or how, the pandemic will end.
The disease that has caused so much death and damage is known as COVID-19. It is a respiratory disease caused by a virus that is transmitted easily from person to person and can result in serious illness or death. According to the Centers for Disease Control and Prevention (CDC), the virus is primarily spread through respiratory droplets from infected individuals coughing, sneezing, or talking while in close proximity to other people. Centers for Disease Control & Prevention, How COVID-19 Spreads (last updated October 28, 2020), available at https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/how-covid-spreads.html (last visited March 29, 2021). On January 31, 2020, the United States Department of Health and Human Services declared a national public health emergency, effective January 27, 2020, on the basis of the rising number of confirmed COVID-19 cases in the United States. United States Department of Health & Human Services, Press Release, Secretary Azar Declares Public Health Emergency for United States for 2019 Novel Coronavirus (January 31, 2020), available at https://www.hhs.gov/about/news/2020/01/31/secretary-azar-declares-public-health-emergency-us-2019-novel-coronavirus.html (last visited March 29, 2021). The CDC explained that COVID-19 ‘‘represents a tremendous public health threat.’’ Centers for Disease Control & Prevention, Press Release, Update on COVID-19 (February 21, 2020), available at https://www.cdc.gov/media/releases/2020/t0221-cdc-telebriefing-covid-19.html (last visited March 29, 2021).
With this context in mind, we turn to the matter before us, which requires this court to consider the extent of the governor’s authority to issue executive orders during the civil preparedness emergency he
The pleadings and the record reveal the following undisputed facts and procedural history. On March 10, 2020, ‘‘[i]n response to the global pandemic of [COVID-19],’’ Governor Lamont ‘‘declare[d] a public health emergency and civil preparedness emergency throughout the [s]tate, pursuant to [General Statutes §§]
Following Governor Lamont’s declaration of the public health and civil preparedness emergencies, he promulgated a series of executive orders in an attempt to contain and mitigate the spread of COVID-19. Relevant to this appeal, on March 16, 2020, he issued Executive Order No. 7D, which provides, among other things, that ‘‘any location licensed for [on premise] consumption of alcoholic liquor in the [s]tate of Connecticut . . . shall only serve food or [nonalcoholic] beverages for [off premise] consumption.’’ Executive Order No. 7D (March 16, 2020). In response to the rapidly evolving COVID-19 pandemic, Governor Lamont continued to promulgate a series of executive orders modifying Executive Order No. 7D. Specifically, in April, 2020,
In compliance with Executive Order No. 7D, and after determining that it would not be profitable to operate a takeout business, the plaintiffs, Kristine Casey and Black Sheep Enterprise, LLC, closed their establishment, Casey’s Irish Pub, on March 16, 2020. Casey is the permittee of a café liquor permit for the pub, which has fifteen stools at the bar, two high-top tables, a pool table, and a maximum capacity of fifty-nine patrons. The pub does not typically serve hot meals, and approximately 90 percent of its revenue comes from the sale of alcohol. The parties agree that, because of the physical location of the pub, ‘‘[o]utdoor service is not a viable option . . . because the tables would completely block the sidewalk, and there would be no protection from cars approaching to park . . . .’’ The parties also stipulate that ‘‘[p]reparing takeout meals and sealed alcoholic beverages for [off premise] consumption is not a viable option . . . as Casey knows from her experience in operating the pub and dealing with her customer base that, without the pub atmosphere, there would be no interest from her clientele to justify the expense of providing such service.’’ The plaintiffs’ pub remains closed, and the parties stipulate that ‘‘it is not economically or physically feasible for [the plaintiffs] to reopen the pub.’’ Since the pub’s shutdown, the plaintiffs have continued to pay rent in the amount of $3200
In June, 2020, the plaintiffs commenced this action against Governor Lamont, requesting the court to declare that he acted beyond his statutory and constitutional authority when he issued Executive Order Nos. 7D, 7G, 7N, 7T, 7X, 7MM and 7ZZ.2 The operative complaint sought a ‘‘temporary and permanent injunction’’ against the enforcement of the challenged executive orders. The complaint also requested a judgment declaring the executive orders unconstitutional. The parties filed a stipulation of facts, and, after the filing of briefs, the case was tried to the court by way of oral argument and based on the briefs and the parties’ stipulation of facts.3
Thereafter, the trial court, Bellis, J., issued a memorandum of decision, in which it denied the plaintiffs’ request for injunctive and declaratory relief, and the court rendered judgment for Governor Lamont. The court reasoned that the COVID-19 pandemic constitutes a ‘‘serious disaster’’ under
The plaintiffs appealed directly to this court pursuant to
Governor Lamont disagrees and contends that, because the COVID-19 pandemic is a ‘‘serious disaster,’’
Following oral argument, we issued a per curiam ruling on December 31, 2020, in which we affirmed the
I
We begin with the plaintiffs’ contention that, by issuing the challenged executive orders, Governor Lamont exceeded his statutory authority. Whether the governor has statutory authority to issue the challenged executive orders during a proclaimed civil preparedness emergency turns on whether the COVID-19 pandemic constitutes a ‘‘serious disaster’’ under
We begin with the text of
The term ‘‘serious disaster’’ is not defined in
Because the term ‘‘catastrophe’’ is not defined in
The plaintiffs note, however, that the enumerated list that follows the term ‘‘catastrophe’’ in
Although it is true that the listed examples of catastrophes do not include the contagion of disease, the plaintiffs’ argument fails to consider that the list is preceded by the phrase ‘‘including, but not limited to . . . .’’ (Emphasis added.)
Moreover, it would be absurd for the statutory scheme to be interpreted such that the governor could 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. We decline to construe the meaning of ‘‘major disaster’’ in such a manner. See, e.g., Goldstar Medical Services, Inc. v. Dept. of Social Services, 288 Conn. 790, 803, 955 A.2d 15 (2008) (‘‘[i]n construing a statute, common sense must be used and courts must assume that a reasonable and rational result was intended’’ (internal quotation marks omitted)).
To the extent the meaning of ‘‘major disaster’’ is ambiguous given the tension between the enumerated list of catastrophes and the legislature’s use of the phrase ‘‘including, but not limited to,’’ we look to extratextual sources to gain further insight into whether the legislature intended that a global pandemic could constitute a major disaster. The legislative history of both §§
Since 1975, the General Assembly has amended the definitions in
The plaintiffs’ contention that the term ‘‘major disaster’’ is limited to weather conditions, seismic activity, fire, explosion and man-made conditions is further
Logically, it would seem that the meaning of the term ‘‘major disaster’’ set forth in
Having concluded that the COVID-19 pandemic constitutes a serious disaster and, therefore, that Governor Lamont was statutorily authorized to proclaim a civil preparedness emergency, we must determine whether such proclamation empowered him to issue the challenged executive orders. Relevant to this appeal, subsection (b) of
‘‘(1) Following the Governor’s proclamation of a civil preparedness emergency pursuant to subsection (a) of this section or declaration of a public health emergency pursuant to section 19a-131a, the Governor may modify or suspend in whole or in part, by order as hereinafter provided, any statute, regulation or requirement or part thereof whenever the Governor finds such statute, regulation or requirement, or part thereof, is in conflict with the efficient and expeditious execution of civil preparedness functions or the protection of the public health. The Governor shall specify in such order the reason or reasons therefor and any statute, regulation or requirement or part thereof to be modified or suspended and the period, not exceeding six months unless sooner revoked, during which such order shall be enforced. . . .
* * *
‘‘(7) The Governor may 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, to prevent or minimize loss or destruction of property and to minimize the effects of hostile action. . . .’’
Executive Order Nos. 7D and 7G, which closed bars and restaurants to all on premise service of food and beverages, were promulgated as part of a series of community mitigation strategies that were designed to encourage social distancing and protect public health and safety and to ‘‘increase containment of the virus and to slow transmission of the virus . . . .’’ Executive Order No. 7G (March 19, 2020). As the trial court noted, it is ‘‘now common knowledge that COVID-19 is spread by people who are in close physical contact with each other, and it is also well known that people who are drinking alcohol in bars tend to gather in close proximity in order to socialize.’’ Other executive orders similarly provided logistical guidance to bars and restaurants in an effort to limit the number of people within these establishments or otherwise effectuate Executive Order No. 7D. See Executive Order No. 7N (March 26, 2020) (directing businesses that remained open to serve food and drink for off premise consumption to ‘‘limit entrance of customers into their locations to the minimum extent necessary to pick up and/or pay for orders, use touchless payment systems, and require remote ordering and payment’’); Executive Order No. 7T (April 2, 2020) (expanding list of sealed containers of alcohol that liquor permit holders could sell under conditions set forth in Executive Order No. 7G); Executive Order No. 7X (April 10, 2020) (extending Executive Order No. 7D’s limitations on bars and restaurants through May 20, 2020). Governor Lamont noted the importance of each executive order to ‘‘reduc[ing] [the] spread of COVID-19,’’ ‘‘increas[ing] containment of the virus,’’ and ‘‘slow[ing] transmission of the virus . . . .’’ Executive Order No. 7G (March 19, 2020); accord Executive Order No. 7T (April 2, 2020). These executive orders fell within Governor Lamont’s authority under
Finally, Governor Lamont issued Executive Order
Moreover, Executive Order Nos. 7MM and 7ZZ are also authorized by the governor’s authority under
II
We now consider the plaintiffs’ contention that
We begin with the relevant legal principles. A challenge to ‘‘[t]he constitutionality of a statute presents a question of law over which our review is plenary. . . . It [also] is well established that a validly enacted statute carries with it a strong presumption of constitutionality, [and that] those who challenge its constitutionality must sustain the heavy burden of proving its unconstitutionality beyond a reasonable doubt. . . . The court will indulge in every presumption in favor of the statute’s constitutionality . . . . Therefore, [w]hen a question of constitutionality is raised, courts must approach it with caution, examine it with care, and sustain the legislation unless its invalidity is clear.’’ (Internal quotation marks omitted.) Keane v. Fischetti, 300 Conn. 395, 402, 13 A.3d 1089 (2011).
‘‘The [c]onstitution of this state provides for the separation of the governmental functions into three basic departments, legislative, executive and judicial, and it is inherent in this separation, since the law-making function is vested exclusively in the legislative department, that the [l]egislature cannot delegate the law-making power to any other department or agency.’’ (Internal quotation marks omitted.) University of Connecticut Chapter, AAUP v. Governor, 200 Conn. 386, 394, 512 A.2d 152 (1986). We have explained that ‘‘[t]he primary purpose of [the separation of powers] doctrine is to prevent commingling of different powers of government in the same hands. . . . The constitution achieves this purpose by prescribing limitations and duties for each branch that are essential to each branch’s independence and performance of assigned powers. . . . It is axiomatic that no branch of government organized under a constitution may exercise any power that is not explicitly bestowed by that constitution or that is not essential to the exercise thereof. . . . [Thus] [t]he separation of
Unlike the separation of powers doctrine that has developed under the federal constitution, ‘‘the historical evolution of Connecticut’s governmental system [has] established a ‘tradition of harmony’ among the separate branches of government . . . .’’ State v. McCleese, 333 Conn. 378, 419, 215 A.3d 1154 (2019). ‘‘Recognizing that executive, legislative and judicial powers frequently overlap, we have consistently held that the doctrine of the separation of powers cannot be applied rigidly.’’ Bartholomew v. Schweizer, 217 Conn. 671, 676, 587 A.2d 1014 (1991). As we have recognized, ‘‘the great functions of government are not divided in any such way that all acts of the nature of the function of one department can never be exercised by another department; such a division is impracticable, and if carried out would result in the paralysis of government. Executive, legislative and judicial powers . . . of necessity overlap each other, and cover many acts which are in their nature common to more than one department.’’ (Internal quotation marks omitted.) Seymour v. Elections Enforcement Commission, 255 Conn. 78, 107, 762 A.2d 880 (2000), cert. denied, 533 U.S. 951, 121 S. Ct. 2594, 150 L. Ed. 2d 752 (2001). For example, the General Assembly does not have exclusive responsibility for legislating. Rather, the legislature and the governor work together to pass legislation. See, e.g.,
A statute will be held unconstitutional on the ground that it violates the separation of powers only if it ‘‘(1) confers on one branch of government the duties which belong exclusively to another branch . . . or (2) if it confers the duties of one branch of government on another branch which duties significantly interfere with the orderly performance of the latter’s essential functions.’’ (Citation omitted.) University of Connecticut Chapter, AAUP v. Governor, supra, 200 Conn. 394–95. Applying these standards to
Section
Our case law supports the conclusion that
By contrast, in State v. Stoddard, 126 Conn. 623, 633–34, 13 A.2d 586 (1940), this court reversed a defendant’s criminal conviction and struck down a statute that authorized the milk administrator to set the minimum price for milk. The only guidance the General Assembly provided to the administrator in setting the price was to ‘‘take into consideration the type of container used and other cost factors [that] should influence the deter-
We acknowledge that subsection (b) (1) and (7) is a broad grant of authority from the General Assembly to the governor. A broad grant of authority, however, is not the same as limitless or standardless authority. As we have explained, although the General Assembly may not delegate its ‘‘law-making’’ function, it may delegate ‘‘some considerable segment of its legislative authority.’’ (Emphasis added.) Salmon Brook Convalescent Home, Inc. v. Commission on Hospitals & Health Care, 177 Conn. 356, 363, 417 A.2d 358 (1979). The United States Supreme Court has similarly explained that, once the legislature has made a policy determination, ‘‘[i]t is no objection’’ that the legislation ‘‘call[s] for the exercise of judgment, and for the formulation of subsidiary administrative policy within the prescribed statutory framework.’’ Yakus v. United States, 321 U.S. 414, 425, 64 S. Ct. 660, 88 L. Ed. 834 (1944); see also Whitman v. American Trucking Associations, Inc., 531 U.S. 457, 475, 121 S. Ct. 903, 149 L. Ed. 2d 1 (2001) (‘‘[a] certain degree of discretion, and thus of [law-making], inheres in most executive or judicial action’’ (internal quotation marks omitted)). In a recent concurrence in connection with the United States Supreme Court’s denial of injunctive relief pertaining to the California governor’s COVID-19 restrictions on the number of people permitted in houses of worship, Chief Justice John Roberts emphasized the need for elected leaders to have broad authority to respond to rapidly evolving emergencies. See South Bay United Pentecostal Church v. Newsom, U.S. , 140 S. Ct. 1613, 207 L. Ed. 2d 154 (2020) (Roberts, C. J., concurring in denial of application for injunctive relief). He explained that ‘‘[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.’’ (Citation omitted; emphasis added; internal quotation marks omitted.) Id.
In enacting
Moreover, it is reasonable for the legislature to conclude that the executive branch of government would be far better suited to respond to a serious disaster with the speed and flexibility needed to protect the public health and welfare. Specifically, the legislature itself is not in session continuously and would not be well positioned to mount a rapid response to a serious disaster, especially one that develops and evolves quickly or unpredictably, and thus requires an ongoing and agile response. Indeed, the former speaker of the House of Representatives, Joe Aresimowicz, noted during the September, 4, 2020 meeting of the Declaration of a Public Health Emergency Committee that, because the Connecticut legislature is part-time, they are ‘‘not structured to handle [a serious disaster].’’ Declaration of a Public Health Emergency Committee Meeting, supra, (17:56). Similarly, Senator Mary Daugherty Abrams, the senate chairperson of the Public Health Committee, explained there are times ‘‘we need to take swift, deliberate action as a government to protect the public’s health, and the Executive Branch is best equipped to do that. . . . There are 187 members of
In rejecting a similar argument that emergency powers of the governor of Kentucky during the COVID-19 pandemic violated the separation of powers provision of that state’s constitution, the Supreme Court of Kentucky explained that it was reasonable for the governor to have greater authority in times of emergency ‘‘given [the] government’s tripartite structure with a legislature that is not in continuous session.’’ (Emphasis added.) Beshear v. Acree, 615 S.W.3d 780, 806 (Ky. 2020). The court further explained that ‘‘[h]aving a citizen legislature that meets part-time as opposed to a full-time legislative body that meets year-round, as some states have, generally leaves [the Kentucky] General Assembly without the ability to legislate quickly in the event of emergency unless the emergency arises during a regular legislative session.’’ (Footnote omitted.) Id., 807. The same rationale applies here.
That having been said, we pause to note that the legislature chose not to include a mechanism for more direct legislative oversight of a declared civil preparedness emergency, as it did for a man-made disaster under
Legislative oversight has not been altogether lacking. In the related context of considering Governor Lamont’s public health emergency declaration, a legislative committee, namely, the Declaration of a Public Health Emergency Committee, formed pursuant to
Thereafter, the committee met again on September 4, 2020, three days after Governor Lamont’s September 1, 2020 declarations. After discussion regarding the scope of Governor Lamont’s authority under both a civil preparedness emergency and a public health emergency,13 the committee took up a motion to disapprove of Governor Lamont’s declaration of a public health emergency pursuant to
In sum,
Our conclusion that, although subsection (b) (1) and (7) represents a broad grant of authority to the governor, it is nonetheless constitutional finds support in the analysis of similar issues from the high courts of our sister states. For example, the Pennsylvania Supreme Court recently rejected a separation of powers challenge to that state’s Emergency Management Services Code, which permits the governor of Pennsylvania to proclaim a disaster emergency and to take actions similar to those authorized by
The Supreme Court of Oregon has similarly reasoned that, although the emergency powers of the governor of Oregon are broad under that state’s statutory scheme, they are not unlimited. Elkhorn Baptist Church v. Brown, supra, 366 Or. 525. The court reasoned that the governor’s actions must be ‘‘exercised in a manner consistent with the reason for which they are granted; that is, they must be exercised to address the declared emergency. . . . Second, the [g]overnor’s emergency powers . . . may be exercised only during a declared state of emergency, [and Oregon’s emergency powers law] requires the [g]overnor to terminate by proclamation when the emergency no longer exists, or when the threat of an emergency has passed.’’ (Internal quotation marks omitted) Id., 525–26. Finally, the court noted that the courts may intervene if the governor’s regulations exceed constitutional limits. Id., 526.
Likewise, the Supreme Court of Kentucky held that
The Supreme Judicial Court of Massachusetts also recently rejected a separation of powers challenge to the Massachusetts governor’s authority to issue emergency orders. Desrosiers v. Governor, supra, 486 Mass. 382, 384–85. The court reasoned that, ‘‘because the [g]overnor’s actions were carried out pursuant to the authority granted to the [g]overnor in the [Massachusetts Civil Defense Act], the emergency orders [did] not violate [the separation of powers provision of the Massachusetts constitution].’’ Id., 382. The court also noted that the act did not interfere with the functions of the legislature. Id., 383.
The plaintiffs, however, point to a recent decision of the Supreme Court of Michigan that they claim supports their contention that
As we noted in our per curiam ruling in the present case, we are mindful of the incredibly difficult economic situation that the plaintiffs and thousands of others across the state are in given the COVID-19 pandemic. Individuals and families have been economically upended as a result of the pandemic. We are also mindful of the more than 300,000 Connecticut residents who have been infected with COVID-19 and, most tragically, the nearly 8000 Connecticut citizens who have passed away in the more than yearlong pandemic. As we explained, the governor is charged with protecting the health, safety, and welfare of the citizens of this state, and the COVID-19 pandemic has presented a dynamic and unpredictable ‘‘serious disaster.’’ The question of when various restrictions imposed as a result of the pandemic should be lifted is a fact intensive inquiry that involves an understanding of ever evolving scientific guidance, including the effects and impacts of newly discovered strains of the virus and their resistance to
The judgment is affirmed.
In this opinion the other justices concurred.