In his ongoing lawsuit against former Newport UPS franchisee Andre “Mike” Desautels, Attorney General TJ Donovan has argued that Gov. Phil Scott’s orders used to justify his mask mandate during the state of emergency were constitutional, despite counter arguments from the defense’s attorney Robert Kaplan.
“As this Court has previously held, and as the Vermont Supreme Court’s precedent and decisions from courts around the country show, the emergency management statutes are constitutional,” Donovan wrote on May 26 in the state’s supplemental brief on the separation of powers filing to Orleans County Judge Mary Miles Teachout.
Donovan argued that if Vermonters really wanted relief from the governor’s orders, there were options available for both the public and lawmakers to take action. Vermont’s attorney general sued the storeowner in February for violating the mask mandate.
“There were many other checks on the governor — including that the legislature could repeal or amend the statute, and the governor could be voted out of office,” Donovan wrote.
Desautels has been at the forefront of the mask debate in Vermont since he told his employees and customers amid the COVID-19 lockdowns that they do not require masks to conduct business. Donovan sued the store as a result of the violations.
Desautels initially lost a challenge against the state’s mask mandate, when he was represented by St. Johnsbury-based attorney Deborah Bucknam. Desautels then turned to Kaplan, of Burlington-based Kaplan & Kaplan, to once again challenge the constitutionality of the emergency orders.
Kaplan argued that the emergency orders, which were renewed by the governor each month for over a year, represent an abuse of power by the executive branch that was never intended by the state and federal constitutions.
In the defendant’s 12-page reply to Donovan’s supplemental brief on separation of powers, filed June 3 with the Vermont Superior Court – Orleans Unit, Kaplan argued that “the record appears devoid of evidence that the statutory requirements for the Governor’s authority to issue Executive Order 01-20 were satisfied.”
The defendants pointed out that there was no declaration by the commissioner of Public Safety that Covid-19 is an “all-hazards’ event.” Kaplan argued such is a prerequisite in the emergency management statutory framework set out in the Vermont Statutes (20 V.S.A § 2 (1).
“It is only after this determination by the Commissioner of Public Safety that an ‘all-hazards’ event exists that authority arises with the Governor to ‘proclaim a state of emergency’ and thereby garner authority to exercise the enumerated ‘additional powers.'”
Kaplan goes on to note that this prerequisite is the “only check on the Governor’s authority to assume total control over every aspect of every citizen’s life for as long as the Governor wishes.”
Donovan cited Athens School District v. the Vermont State Board of Education (2020) to argue that. in some scenarios, one branch of government may gain power over the others.
“The Vermont Constitution’s separation-of-powers requirement is ‘a relatively forgiving standard, tolerant of . . . overlapping institutional arrangements short of one branch virtually usurping from another its constitutionally defined function.’ Athens Sch. Dist., 2020 VT 52, ¶ 38 (quoting Hunter, 2004 VT 108, ¶ 21),” he wrote.
Donovan argued that the actions of other states can justify the policies that Vermont should follow.
“The Connecticut Supreme Court’s logic wholly applies here,” he wrote. “As in Connecticut, where the governor, in the event of an emergency, could take steps “reasonably necessary in the light of the emergency to protect the health, safety and welfare of the people of the state” to protect the public, Casey, 2021 WL 1181937, at *12 (quoting Conn. Gen. Stat. § 28-9(b)(7)), Vermont’s statute authorizes the Governor, in an all-hazards event, to take steps “necessary to promote and secure the safety and protection of the civilian population.” 20 V.S.A. § 11(6).”
Donovan also argued that “Vermont’s statute authorizes the Governor, in an all-hazards event, to take steps necessary to promote and secure the safety and protection of the civilian population.”
Back in March, after the state court made a decision against the store owner, Donovan thanked the Vermonters who followed orders.
“To all the Vermonters and Vermont business owners who have done the right thing throughout this pandemic and followed the Governor’s orders, I thank you,” Donovan wrote on Twitter.
In the June 3 filing by the defendant, Kaplan urged the court to declare the entire emergency management statutes unconstitutional.
“The law in this case is clear. The executive branch of government may not be granted the authority to both make and enforce laws,” he wrote. ” … In response to Covid-19, the Governor has declared massive and unprecedented power for himself and there is no oversight or check on this power aside from the Governor’s own good intentions. This is not constitutional and the Court must declare it so.”
A hearing on penalties for Desautels, the store owner, is scheduled to take place June 24.