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Connecticut’s mask mandate is gone, but the litigation continues

Pulling down his mask, Justice Gregory T. D'Auria asks: "I’m wondering why the state wouldn't want us to answer these questions."
Pulling down his mask, Justice Gregory T. D'Auria asks: "I’m wondering why the state wouldn't want us to answer these questions."

Connecticut’s Supreme Court wrestled Wednesday over whether a legal challenge to the governor’s emergency powers during the first two years of the COVID-19 pandemic is moot or an opportunity to legally vet them ahead of future crises.

In oral arguments on the first day of the court’s new term, justices sharply questioned opposing lawyers over 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 mandate central to the case was abandoned in February by his clients, Gov. Ned Lamont and Education Commissioner Charlene M. Russell-Tucker.

Norm Pattis, representing the CT Freedom Alliance in its challenge of the mask mandate and other emergency actions, said the lawsuit should be able to pass a key legal test: If moot, does the case raise questions likely to be repeated?

“We’ve lived through extraordinary times in the past few years, and it raises the question of how we’ll govern ourselves should we endure in extraordinary times again,” Pattis said.

Pattis wryly asserted that four of the five justices hearing the appeal wore masks, effectively supporting his thesis that many questions raised during the past two years could become relevant again.

“Four of the five of you are wearing masks, presumably because you discern some risk to yourself or to loved ones,” Pattis said.

Justice Steven D. Ecker, who did not sport a mask, challenged Pattis over what precisely were the issues before the 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 acts related to the emergency powers, but it has not taken the opportunity to make permanent changes that might clarify how long emergency powers can continue without executive orders coming under a more formal review.

“The claims that Mr. Pattis raises are not frivolous, Ecker said.

Justice Gregory T. D’Auria, who used to represent the state before the Supreme Court as the attorney general’s lead appellate lawyer, said the evolving authority for the string of emergency declaration was confusing.

“Having been somewhat in your position before, I’m wondering why the state wouldn’t want us to answer these questions,” D’Auria said. “What is it that the state so badly doesn’t 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 declines to weigh into weighty constitutional questions when it doesn’t have to,” and there is risk in doing so under hypothetical circumstances.

“And I think given that the mandate has been repealed, there’s no real way to know what the circumstances are going to be in the future and what the justifications are going to be if there were a new mask mandate,” Holzman said. “And so a decision could run the risk of potentially hamstringing the state’s ability to flexibly respond to a future pandemic.”

Under the terms of his emergency declaration allowed by civil preparedness and public health laws, the governor had unilateral authority to bypass normal regulatory or legislative channels, initially with bipartisan support.

To halt the spread of a virus that quickly threatened to overwhelm the capacity of hospitals in Connecticut, New York and New Jersey, Lamont temporarily ordered the closings of schools and businesses, later mandating the wearing of masks in many public settings, including schools.

His first declaration lasted six months. In the weeks and months that followed, the legislature tweaked the rules, providing a measure of legislative oversight as the state of emergency continued under subsequent declarations.

But members of the legislature’s conservative caucus, all Republicans, became restive. Two of its members, Reps. Doug Dubitsky of Chaplin and Craig Fishbein of Wallingford, are lawyers who agreed to represent plaintiffs in the case. They were not present Wednesday.

One of the claims in the original case, which was dismissed by a trial judge, was that masks were ineffective in protecting children and that the school mask mandate should have come under the review of a public hearing.

Pattis said the state could defend emergency actions during catastrophes of limited duration, not a pandemic that lingers.

“The whole point of the emergency civil preparedness doctrine is to respond to the meteor, to respond to the tsunami,” Pattis said. “It’s not to respond to something that’s become a daily part of our lives and suspend the Constitution ‘because we know best.’ That’s just not any part of our Constitution.”

Senior Justice Christine E. Keller challenged this assertion.

“You talk about a catastrophe, a catastrophe you describe as the the violation of separation of powers,” Keller said. “What about the catastrophe that we were facing in 2020, with the bodies of dead persons piling up in hospitals because there was no place for them anymore?”

“There is no unhysterical exception to the Bill of Rights or to the requirements of the state Constitution,” Pattis said. “For example, of those bodies that were piled up, less than 1% were children. Almost no children died during the pandemic.”

Keller replied there were other reasons for children and others to wear a mask, such as preventing the transmission of COVID to more 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’re saying?” Pattis said.

“We don’t have a mask mandate right now,” Keller said.

“But should we? Pattis said. “On that logic, justice, because there is a vulnerable person in Harford, we should all wear masks and be selfless?”

A minute later, Holzman stepped to the lectern.

“The school mask mandate that the Department of Education put in place was a reasonable, widely accepted safety measure that was designed to help ensure that more than 500,000 Connecticut public school students could safely access in-person learning throughout the pandemic,” Holzman said.

The court should not entertain Pattis’ concerns and arguments because his appeal is moot, he said.

“On February 28, the Department of Education formally repealed the mask mandates and they haven’t reinstated it,” Holzman said, “so there’s no practical relief that this court could provide on any of the plaintiffs’ claims.”

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