NEWPORT CITY — Orleans Superior Court Judge Mary Miles Teachout agreed Thursday morning to hear new arguments challenging the constitutionality of Vermont emergency powers laws that allowed Gov. Phil Scott to issue a mask mandate during the COVID-19 pandemic.
But the judge refused to accept new evidence or reopen the trial against Newport City businessman Andre Desautels on whether he violated the mask mandate.
She left standing a permanent injunction issued March 12 ordering Desautels to comply with the mask mandate in his Main Street print shop and set the stage for a hearing on whether he should be fined for violating those orders.
Desautels’ new attorney Robert Kaplan says in a brief seeking a new trial that Scott asserted “unprecedented power” in his emergency orders and that Vermont Attorney General T.J. Donovan is making an example of him to quash protests.
Desautels said at trial in early March that he had not and would not wear a mask in the UPS Store, renamed the Derby Port Press, despite being ordered to do so by Donovan.
Desautels lost his UPS franchise on Feb. 17 after news broke that he was intentionally not following the mask mandate. Desautels lost his lease, closed his Main Street location, and moved his shop to Route 111 in Derby.
“Absent government power exercised by the executive branch of the Vermont State government, Mr. Desautels would be still operating a UPS Store franchise business and be little known outside of his circle of friends and customers,” Kaplan argued in response to the attorney general’s opposition to a new trial.
“Instead, by choosing to take a stand against the unprecedented power asserted by one single individual, Gov. Phil Scott, Mr. Desautels has become a household name throughout this state and a lightning rod for those who regard the claim to unlimited power by the governor as one step too close to tyranny.”
Desautels said at trial in early March that he had not and would not wear a mask in the shop despite being ordered to do so. Desautels did not require his employee to wear a mask because of an illness but did not provide a sneeze guard or shield as a recommended alternative to protect her and customers.
After the trial, Desautels fired his attorney, Deborah Bucknam of St. Johnsbury, saying she did not properly consult with him.
On Thursday, the judge heard from both Kaplan and Assistant AG Rachel Smith.
Kaplan asked her to set aside the permanent injunction and redo the trial, saying there was a communications “disconnect” between Desautels and Bucknam.
He admitted that he did not listen to the entire three-day trial. Kaplan said he did not know that Desautels had a chance to protest early on the consolidation of the preliminary hearing into a trial on the merits.
Kaplan argued that this case involving “complex issues of both medicine and law” went from complaint to trial in seven business days. He called it “unthinkable” that Desautels did not have the opportunity to use all his pre-trial rights.
“The prejudice is enormous,” he said.
Kaplan said he wants to bring in legal experts to discuss the constitutionality of the Vermont statute that gives the governor emergency powers.
“This is an issue that is emerging nationally …” Kaplan said.
The judge paused briefly before declining to reopen the trial and hear new evidence.
The judge said the dispute over the performance of Desautels’ first attorney is not a legal basis for a new trial.
However, she said the limits of executive authority under emergency statutes is an important constitutional matter.
She called it an emerging issue that warrants closer attention.
The judge gave Kaplan two weeks to file his legal argument, and the state two weeks to respond, with all responses due by early June.
She rejected Kaplan’s request for more time.
The judge said she expects to schedule a hearing on monetary damages by June.