NEWPORT CITY — The attorney for a city business owner who refuses to wear a mask at work argued Tuesday morning in court that Vermont Gov. Phil Scott’s mask mandate is unconstitutional.
Attorney Deborah Bucknam said in a remote hearing in Orleans Superior Court civil division that Vermont Legislature “has abdicated its responsibility” by not reining the governor in.
Derby Port Press owner, Andre Desautels, of North Troy, is fighting a lawsuit by Vermont Attorney General T.J. Donovan ordering him to wear masks in his Main Street business, formerly the UPS Store, as required by the governor’s executive orders in response to the COVID-19 pandemic.
Desautels remains under a preliminary injunction imposed Feb. 23. He could face a fine of up to $1,000 for every day he violates the order. Desautels said he lost most of his business when UPS yanked his franchise.
Assistant Attorney General Rachel Smith said that Desautels admits he has not worn a mask in his store for a year since the governor issued the mandate, still isn’t wearing one, and said he has no intent of doing so in the future.
Smith said there is no court precedent to show that the emergency orders are unconstitutional.
Judge Mary Miles Teachout is expected to issue a written ruling on the injunction soon. That will determine if the state lawsuit will go forward, she said.
In closing arguments Tuesday morning, Bucknam described the governor’s executive orders under his emergency management authority as “fairly draconian.”
“The state has utterly failed to prove that there is any basis for a (continued) wearing of masks in the state,” Bucknam said.
Bucknam said that the state failed to prove the order was essential under the pandemic for “every single citizen of Vermont for 12 months.”
The judge pressed Bucknam to be clear.
“Are you saying that the COVID-19 pandemic is not an all-hazards emergency?” the judge asked.
Bucknam pointed out that there are 25 people hospitalized with COVID-19 in Vermont and only five in an intensive care unit in the state.
She said that she didn’t think anyone would call that an all-hazards emergency.
Under Vermont’s emergency management orders, the governor had the authority to close down businesses and ban people from meeting others in their private homes on the basis of scientists’ recommendations, Bucknam said.
Allowing scientists like the state epidemiologist to dictate emergency policy that severely restricts liberty “just does not comport with our constitution or our constitutional republic,” Bucknam added.
And she discounted the state’s arguments that the Legislature has supported the governor’s authority.
“The fact that the Legislature hasn’t acted doesn’t mean that the Legislature has ratified anything,” Bucknam said.
“The Legislature has abdicated its responsibility” because it has not put any restrictions on the time frame, methods or scope of the governor’s orders, she added.
Smith disputed Bucknam’s argument that Desautels cannot be told to wear a mask because he is not an employee. She said a reasonable reading of the order would include owners or independent contractors in a workplace.
She said Desautels is not being discriminated against as a business owner.
Smith argued that the state has shown that masks are effective in slowing the spread of COVID-19. Disputes over policy should be left to the political branches, not argued in court, Smith said.
The emergency management statute allows the governor to quickly respond to emergencies, Smith said.
“We ask that the court to find the defendant liable for violations of the emergency management statute and the governor’s executive orders and enjoin the defendant from further violations,” Smith said.
This is the second Vermont business owner Bucknam has represented who has challenged the governor’s orders in court.
A lawsuit against Rutland gym owner who kept his gym open last spring despite the governor’s order continues. A judge dismissed the gym owner’s countersuit alleging that the governor cost him business.
In that case, the judge referred to the broad powers of governors during health emergencies to protect the public, cited precedents and said that the Rutland gym owner did not appear to recognize the reality of the pandemic.