HARTFORD, CT—Lawyers for families objecting to a Connecticut requirement that students wear masks in school shifted the focus of their lawsuit this week to Gov. Ned Lamont and claimed that his emergency authority during the pandemic is unconstitutional.
Hartford Superior Court issued a summons Monday adding the governor as a party to a lawsuit, which since August has been aimed at the Education Department and its commissioner, Miguel Cardona.
The plaintiffs are a group of Connecticut parents who claim that a state-imposed mask requirement designed to slow the spread of the COVID-19 virus risks physical and psychological harm to school children. In a November ruling, Judge Thomas G. Moukawsher declined to halt the mandate and found that masks posed no emergency danger to students.
The group has appealed that ruling and its lawyers are attempting to get the case before the state Supreme Court. On Monday, they also amended their lawsuit. The new complaint spends less time challenging the virtues of the mask mandate and more time disputing the state’s authority to impose it.
In their amended complaint, the plaintiffs argue that a state law giving Lamont emergency authority during the pandemic is unconstitutional. In March and September, Lamont used the law to declare civil preparedness emergencies in response to the ongoing pandemic. The group argues that the law is unconstitutional and the pandemic does not fit the conditions necessary to invoke it.
As a result, they claim that the executive orders the governor has issued—including the order authorizing the mask mandate—hijack the legislature’s authority to make state law.
“Governor Lamont’s usurpation of the powers of the Legislative Branch, under the auspices of a ‘civil preparedness emergency’ that does not exist, violates the separation of powers doctrine of the Connecticut Constitution,” they wrote.
“The Connecticut Constitution contains no general welfare clause granting the State paternalistic authority over every sniffle that its governed incur,” they also wrote.
It is an argument similar to one that is already under consideration by the state Supreme Court. Earlier this month, justices heard arguments in another case in where a Milford pub owner has challenged Lamont’s emergency authority to order her business closed.
The high court has not yet issued a ruling in that case. However, during the proceedings several justices questioned whether the legislature’s decision not to reject the governor’s emergency declarations represented their consent to his actions.
“Either through subsequent legislation or litigation, [the legislature] can put a check on the governor’s powers,” Chief Justice Richard Robinson said.
Last week, Moukawsher denied a motion from the state attorney general’s office asking him to dismiss the mask challenge. He also denied an effort by the plaintiffs to get him to pause the proceedings while their appeal played out.
“There is a basic issue at the root of this case, and it may as well be decided now. Does the Governor’s emergency power allow him to give force to the mask wearing rules or has he violated the statutes or constitution?” the judge wrote.
“Rather than trying to delay these proceedings on one ground or the other, the parties would be better off seeking an immediate hearing on the merits of the purely legal claim. That way, the party unhappy with it could get the issue joined in the fastest way in the highest court interested in it,” Moukawsher said.