On New Year’s Eve, high court says Lamont’s COVID bar closures are constitutional

Exhibit C, Casey v. Lamont

Exhibit C in Kristine Casey’s lawsuit: The interior of her pub, closed since March.

The Connecticut Supreme Court issued a unanimous opinion early on New Year’s Eve upholding the constitutionality of Gov. Ned Lamont’s executive orders closing bars as a public health measure during the COVID-19 pandemic.

“Although the plaintiffs raise important questions regarding the governor’s authority in a pandemic, our analysis of the pertinent law and relevant facts leads us to conclude that the governor’s challenged actions to date have been constitutional,” the court ruled.

The court rejected the claim that the sweeping emergency powers granted to the governor under state law are an unconstitutional delegation of the General Assembly’s legislative authority to the governor. The decision comes during a spike in COVID cases.

“This decision saves lives,” said Attorney General William Tong, whose office has successfully defended challenges against the governor’s emergency powers.

The ruling came in response to a challenge filed on June 30 by Kristine Casey, the owner of Casey’s, a small pub in a strip mall in Milford that boasted 15 stools, 10 beer taps, a pool table and a friendly “Cheers” vibe before the governor’s closure order on March 16.

Her lawsuit came with unusual exhibits: Color photos of empty black stools lined up at the end of a U-shaped wooden bar; a pool table covered in plastic; two spotlit dart boards hanging on a cream-colored wall; and flat-screen TVs. A reference to the “Cheers” theme song in the lawsuit was footnoted: ”Where Everybody Knows Your Name,” Gary Portnoy and Judy Hart Angelo, © 1982.

Casey is described in the lawsuit as a bartender who became the bar owner eight years ago. Her monthly expenses are about $14,000, including rent of $3,200. Her suit described her as “hemorrhaging personal savings” trying to stay afloat. Her lawyer says she has been unable to get help from the state or the federal Paycheck Protection Program.

In dry legal prose, the court offered a measure of sympathy, but no relief.

“We acknowledge the incredibly difficult economic situation that the plaintiffs — and thousands of others across the state —are in given the COVID-19 pandemic,” the court wrote. “We also acknowledge, however, that the governor is charged with protecting the health, safety and welfare of the citizens of this state, and that COVID-19 presents an unforeseen and unpredictable pandemic that is not a static or isolated crisis.”

The decision was meant to give a quick answer. A full opinion is to follow, the court promised.

Without a full opinion, it was not readily apparent if the court would use the case to make a broad declaration about the extent of the governor’s emergency powers during a pandemic or narrowly rule on the executive orders pertaining to bars.

Tong described the decision as “four pages of important guidance…with more to follow.”

The current emergency expires on Feb. 9, a month after the General Assembly is to convene its 2021 session. Lawmakers expect some restrictions to remain in place, though there have been no substantive talks about how to proceed.

The court decision comes as the state is battling a second wave of COVID cases.

 Over the past seven days, Connecticut has reported 13,000 new cases and 228 deaths attributed to COVID-19. Rhode Island, Connecticut, New York and Massachusetts have had among the highest COVID death rates in the U.S. over that period. 

The Connecticut court ruling upholding a lower court reflects a long history of courts showing deference to executive authority in public health emergencies, though the governor’s declaration of emergencies under both a civil preparedness and public health law was unprecedented.

Tong said the Supreme Court “got this right.”

“The Governor has broad authority after the declaration of public health and civil preparedness emergencies to take affirmative steps to protect public health and to save lives,” Tong said in a written statement “Governor Lamont’s orders since the onset of the pandemic in March have been lawful and justified. These measures have not been without sacrifice, but nothing is more important right now than stemming the spread of COVID-19 and keeping our state safe.”

Jonathan J. Klein, who represented Casey, said he believed he had made a strong argument about the limits of the governor’s executive powers.

“Obviously, I am deeply disappointed,” he said. “I thought our arguments were strong and they were correct. But I’m not the last word on the law in Connecticut.”

Lamont acted with the consent of the General Assembly, which had the authority through a special committee of 10 lawmakers to reject his two six-month emergency declarations. It declined to deny him, unanimously endorsing the first declaration and by a 6-4 partisan vote the second time.

The ruling upholds a decision by Superior Court Judge Barbara Bellis, who presides over a complex litigation docket in Waterbury. 

Last week, Bellis dismissed a similar challenge bought by business owners with the backing of Republican lawmakers. Rep. Mike France, R-Ledyard, was one of the plaintiffs, and one of the lawyers bringing the case was Rep. Craig Fishbein, R-Wallingford.

Restaurants have been permitted to reopen under certain restrictions: Indoor dining capacity is limited to 50%, and tables must be kept a distance and separated by plastic shields. And closing time is 10 p.m., even on New Year’s Eve.