Courtesy of Casey's Pub Facebook page

HARTFORD, CT—The Connecticut Supreme Court heard a challenge Friday to one Gov. Ned Lamont’s pandemic-related orders brought by the owner of a shuttered Milford pub, whose lawyer argued that Lamont was “playing God” with emergency authority.

The case, brought by the owner of Casey’s Irish Pub in Milford, is the first major test of the emergency power which Lamont has used to issue public health and civil preparedness orders during the coronavirus pandemic. The governor ordered bars and nightclubs closed in March to slow the spread of the COVID-19 virus and they have remained closed since.

During arguments Friday, attorney Jonathan Klein told justices that Lamont’s orders were not constitutional and were based on statutes that left little room for legislative checks and balances.

“One of the failings of this statute is it doesn’t allow the legislature to override the governor, even challenge the governor. The governor can do whatever he wants—whatever he thinks is best. The governor is essentially playing God under this statute,” he said.

Several justices questioned Klein’s reasoning. A committee of legislative leaders met in September when the governor extended his COVID emergency declaration and they opted not to reject its continuation. Meanwhile, the legislature has held special sessions twice since Lamont closed bars but did not pass legislation to reverse the decision.

“Either through subsequent legislation or litigation, [the legislature] can put a check on the governor’s powers. It seems to me that it’s there,” Chief Justice Richard Robinson said. “I don’t understand your argument to say it isn’t.”

Justice Christine Keller pointed to the subsequent meetings of lawmakers in the time since Lamont closed bars.

“They haven’t done anything about these orders. Can we view that as their acquiescence in what the governor’s been doing?” she asked.

Klein drew a different conclusion from that inaction.

“I view that as a dereliction of duty on their part, not an acquiescence,” he responded.

During his arguments on behalf of Lamont, Assistant Attorney General Philip Miller said that the legislature’s September decision to reaffirm the extension of his emergency declaration suggested that the legislative branch was “fully was on board” with the governor’s actions.

Justice Gregory D’Auria wondered whether the state believed there were any durational limits to Lamont’s emergency powers, if the legislature took no action. The pandemic was not a snowstorm which could be cleaned up in a day or two, D’Auria said. The crisis had already gone on longer than many expected, the justice said.

Miller said the length of the emergency depended on the scope of the pandemic, but was not explicitly capped by the state law.

“Is your position going to be the same if the session comes and goes, they’ve been in session, they’re passing other laws, they don’t do anything about this?” D’Auria asked. “I think the plaintiff’s client would say, ‘I want my elected representative to have something to say about this.’”

Miller acknowledged the legislature could choose to do nothing. He suggested the public was free to vote out legislators they were not pleased with but it did not change the constitutionality of the state law.

“I understand it’s broad, especially in this scenario but it’s a constitutional statute and just like other statutes, it need not have a time frame, a limit, a sunset provision. I don’t think this one necessarily has to either,” he said.

At times during the arguments, the discussion turned to whether the pandemic constituted a “serious” emergency or a “major” one. The two words vary slightly with regard to how they apply to state law. Justice Andrew McDonald sought to reinforce the gravity of the situation.

“Yesterday alone, more Americans died of COVID than died in 9/11. To date, more Americans have died than died in battle in World War II over four years,” he said. “It’s kind of hard to get your head wrapped around that not being a serious disaster.”

In general, no one seemed to suggest otherwise. Klein, despite arguing that his client’s bar should be permitted to open, began his arguments by acknowledging its severity.

“My client and I fully understand how serious COVID-19 is. As I sit here today, as a matter of fact, three of my grandchildren, one of my daughters and one of my sons-in-law have COVID-19 and they have symptoms. Eleven of my grandchildren are in quarantine right now. I get it. But we’re talking about the rule of law here,” Klein said.