The lawyer for the former Newport UPS franchisee — who is facing fines for flouting the state mask mandate — believes the state law behind the mandate should be ruled unconstitutional.
Vermont’s emergency management statute unlawfully delegates lawmaking powers to the executive branch, attorney Robert Kaplan argued in court papers filed Friday.
The new filing also takes aim at a ruling by Orleans County Judge Mary Miles Teachout, who in March ordered Kaplan’s client, Andre “Mike” Desautels, to comply with Covid-19 masking rules if he wanted to stay in business.
“Following the court’s reasoning, the governor would have been authorized to suspend rights under the Sixth Amendment and Eighth Amendment of the United States Constitution and order the imprisonment or execution of the noncompliant,” Kaplan wrote, before alluding to the detainment of Japanese Americans during World War II.
For more than five years, Desautels ran a UPS franchise on Main Street in Newport. But the company cut ties with him in February after he refused to comply with Gov. Phil Scott’s executive order requiring business employees who interact with the public to wear face coverings to help limit the spread of Covid-19.
Attorney General TJ Donovan sued Desautels in civil court soon after, and Desautels shifted to operating a printing business in his storefront.
After Teachout’s March ruling, the businessman asked for a new trial, complaining that his original lawyer, Deborah Bucknam, took actions he never authorized. State lawyers argued that no new trial was warranted, and Teachout agreed.
But in rejecting Desautels’ request, the judge said he and his lawyer could submit additional legal briefs on the issue of separation of powers, a key focus for the defense in Vermont’s first court test of the governor’s Covid-19 emergency order, which included mask-wearing.
Teachout delayed her decision on whether Desautels will face civil penalties until at least June so that lawyers would have time to file arguments on the question. Kaplan submitted his brief the day it was due; state lawyers have until May 27 to file their response.
Kaplan dedicated significant space to arguing that the risk of dying from Covid-19 in Vermont is “infinitesimally small” for people under age 80. He pointed to state death statistics for Covid and compared those figures to death data for cancer and other diseases.
“Against this backdrop, admittedly viewed through a rearview mirror, the governor declared for himself extraordinary and unprecedented authority to exercise almost total control over the lives, livelihood and freedoms of all Vermonters,” he wrote.
Kaplan argued that the statutes used to justify the mask mandate should be declared unconstitutional.
The statutes “provide for unlimited duration of executive authority” determined entirely by the governor, with no checks, he wrote. The Legislature’s role as a lawmaking body is usurped, he wrote.
Kaplan also criticized Teachout’s reading of those statutes, arguing that the judge’s interpretation had expanded the governor’s rulemaking authority. Under the judge’s interpretation, the governor would be able to make any rule that in some way touches on the “legislative purpose” of the emergency management statutes.
The judge was also incorrect in ruling that state laws provide control over the governor’s executive authority, Kaplan argued. The lawyer wrote that the statutes say only the governor can end his own emergency powers.
“This is tyranny (benevolent or not) and plainly not what our founding fathers had in mind for government constrained by checks and balances,” Kaplan wrote.
Once the state files its response to Kaplan, the lawyer has until June 3 to reply. A half-day hearing on penalties will be held after June 3, according to the court, but the date is not yet certain. The maximum penalty for violating the mandate is a fine of up to $1,000 per violation, with each day of noncompliance counting as its own violation.
