KRISTINE CASEY et al. v. GOVERNOR NED LAMONT, SC 20494

Judicial District of Waterbury, Complex Litigation Docket

 

      Separation of Powers; General Statutes § 28-9; Civil Preparedness Emergency; Whether COVID-19 Pandemic Is a "Serious Disaster"; Whether Governor Has Authority to Issue Executive Orders Limiting Alcohol Service in Response to Pandemic.  General Statutes § 28-9 authorizes the governor to proclaim a civil preparedness emergency "[i]n the event of a serious disaster."  Once the governor has proclaimed a civil preparedness emergency, he has the authority under § 28-9 to "modify or suspend in whole or in part . . . any statute, regulation or requirement or part thereof" if it conflicts with "the efficient and expeditious execution of civil preparedness functions or the protection of the public health."  In response to the COVID-19 pandemic, the defendant, Governor Ned Lamont, declared a civil preparedness emergency in March, 2020, and subsequently issued a series of executive orders aimed at stopping the spread of the disease.  Those executive orders, among other things, prohibited bars from serving food or alcohol on the premises.  They were subsequently modified to allow for alcohol to be served during outdoor dining, and later, during indoor dining.  The plaintiffs, Kristine Casey and Black Sheep Enterprise, LLC, own and operate a bar in Milford known as Casey's Irish Pub (pub).  The plaintiffs, whose business consists of 10 percent food and 90 percent alcohol, closed the pub since the governor issued the first executive orders, and it has remained closed.  The plaintiffs assert that the pub cannot reopen as a result of the executive orders, as neither indoor nor outdoor dining is economically or physically feasible and their customers have no interest in purchasing prepared takeout meals or sealed alcoholic beverages for off premises consumption.  The plaintiffs brought this action seeking an injunction to prohibit the governor from enforcing those or similar executive orders as well as a declaration that those or similar executive orders are unconstitutional under the state constitution.  The trial court concluded that the governor has the statutory authority to issue the challenged executive orders and, furthermore, that § 28-9 is not unconstitutional.  The trial court rendered judgment in favor of the governor, and the plaintiffs appealed to the Supreme Court upon the granting of certification by the Chief Justice pursuant to General Statutes § 52-265a.  The plaintiffs claim on appeal that the trial court erred in finding that the COVID-19 pandemic is a "serious disaster" within the meaning of § 28-9 (a) and erred in concluding that the governor has the statutory authority to issue the executive orders in question.  They argue on appeal that § 28-9 is unconstitutional in that it violates the separation of powers enshrined in article second of the state constitution.  They specifically assert that the statute improperly delegates to the governor the legislative power that the state constitution vests solely in the General Assembly, as § 28-9 allows the governor to unilaterally suspend, in whole or in part, any statute, regulation or requirement.