A lawyer for a group opposed to mask mandates in Connecticut schools argued Wednesday that the state Supreme Court should rule against the now-expired COVID restriction to prevent the state from considering similar mandates in the future.
The high court heard arguments Wednesday from Norman Pattis, a lawyer for the CT Freedom Alliance and a group of parents opposed to an order that required students to wear masks in an effort to mitigate spread of COVID-19. The group appealed a Superior Court ruling upholding the mandate last year.
The state, represented by Attorney General William Tong’s office, argued that the Supreme Court should set aside the lawsuit because the mandate it sought to challenge has not been in effect since February.
However, Pattis told justices he believed there was nothing stopping Gov. Ned Lamont from issuing another mandate should circumstances change.
“How do we know that there will not be a new variant of the virus tomorrow?” Pattis asked Justice Steven Ecker.
“The Justice Ecker virus that comes always with friendly questions but carries with it a silent kick?” Pattis said. “How do we know that won’t happen and the governor won’t decide, ‘Hey, you know what, let’s get together with those lawmakers and I’m going to suspend the rules and we can’t be safe enough for our childrens’ sake.’ So I think there is a substantial danger and history shows it.”
Throughout months of litigation, Pattis has argued that the state legislature created concerns about the separation of power in government by granting Lamont multiple extensions to the emergency declarations on which his pandemic orders were based.
Chief Justice Richard Robinson asked whether Pattis was not inviting similar issues by asking the Judicial Branch to second guess the decisions of the legislature.
“You’re worried about separations of power issues, but it seems to create a new separations of power issue where this court would be telling the legislature how to run its business,” Robinson said.
Meanwhile, Assistant Attorney General Timothy Holzman asked the court to rule the lawsuit as moot or no longer relevant given the expiration of the mask order. Justice Gregory D’Auria questioned why the state would not prefer a definitive ruling.
“I’m wondering why the state wouldn’t want us to answer these questions,” D’Auria said. The justice described state authority during the pandemic as “very confusing.” “What is it that the state so badly doesn’t want us to decide?”
Holzman said the court had historically avoided deciding on “weighty constitutional questions” when such decisions were unnecessary.
“Given that the mandate has been repealed, there’s no way to know what the circumstances are going to be in the future,” Holzman said. “A decision could run the risk of potentially hamstringing the state’s ability to flexibly respond to a future pandemic.”
Holzman said the Supreme Court’s decision upholding pandemic-related emergency orders in a similar case last year suggested that the order instituting the mask requirement also passed constitutional muster.
Ecker interrupted, saying the court included “cautionary language” in its prior rulings on the matter and expressed concern about the potential to change government by executive order.
“The claims that Mr. Pattis raises are not frivolous to my way of thinking,” Ecker said. “The use of emergency powers to change, fundamentally, a governmental structure is not … a fantasy.”
Ecker was not the only justice to challenge one of the attorneys. Justice Christine Keller questioned whether Pattis’ constitutional arguments took into account the severity of the emergency faced by policymakers over the past two years.
“You talk about a catastrophe you describe as the violation of the separation of power,” Keller said. “What about the catastrophe we were facing in 2020 with the bodies of dead persons piling up in hospitals because there was no place for them any more?”
Few of those bodies were school children, Pattis answered. “There is no ‘I’m hysterical’ exception to the Bill of Rights or the state constitution.”
Keller said mask mandates were designed to protect both the mask-wearer and others.
“It seems to me, it’s more of a selfless act to prevent you — if you happen to be a carrier and we don’t always know if we’re a carrier because we may not have symptoms — from giving it to somebody who really has a very strong chance of dying,” Keller said.
“Should we have a mask mandate in perpetuity because some of us are vulnerable?” Pattis asked.
It was not immediately clear Wednesday when the justices would rule on the matter.