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MAINE POLICY INSTITUTE

ONLINE TOWN HALL

IN RE: MAINE LEGAL FORUM ON COVID-19 EMERGENCY POWERS

Held via videoconferencing on

May 14, 2020

Starting at 4:30 p.m.

Moderated by:

Matthew Gagnon, CEO of Maine Policy Institute

MEMBERS OF THE PANEL

Sigmund Schutz, Esq.

Keith Jacques, Esq.

Patrick Strawbridge, Esq.

Transcribed by:

Tammy M. Smith

Court Reporter/Notary Public

1 TRANSCRIPT OF PROCEEDINGS

2 * * * * * *

3 MODERATOR GAGNON: Welcome, everyone, to our

4 event tonight. I’m really very excited about this one.

5 This is one of those ideas we had a few weeks ago that

6 seemed almost necessary to do. There’s so many things

7 that are happening in our time right now that are

8 unprecedented. And I know that’s cliche, and you’ve heard

9 a million people say that kind of thing in the last

10 several months; but it is true. It’s cliche for a reason.

11 We’re in a sort of uncharted territory in a hundred

12 different directions, including legally. And one of the

13 most often repeated questions that I get is: How can they

14 do this? And how can we do what we’re doing as it relates

15 to government action?

16 And so today, to explore that topic a little bit,

17 we’ve invited a panel of three individuals that have a lot

18 of expertise in this area to help us unpack that a little

19 bit and learn more about exactly what the government can

20 do, what it can’t do, what it might be doing right, what

21 it might be doing wrong, and what the legal implications

22 of all of these questions are on our lives as we kind of

23 try to push forward in this new time of coronavirus.

24 So just to quickly introduce our panel here

25 today, starting off, we have Keith Jacques. He’s worked

3

1 as a civil trial lawyer for over 25 years, successfully

2 representing plaintiffs and defendants in complex

3 commercial cases, personal injury, products liability,

4 medical malpractice, business and contract disputes as

5 well. He’s represented individuals, small businesses, and

6 large companies in a wide variety of commercial matters,

7 and is frequently asked to mediate civil disputes. He

8 currently serves as city solicitor for the City of

9 Biddeford.

10 Patrick Strawbridge has represented a broad range

11 of individuals and institutional clients on matters of

12 constitutional law, financial and securities regulation,

13 environmental laws, complex commercial disputes, and

14 consumer protection statutes. He provides clients with

15 advice and representation at pre-litigation, trial, and

16 appellate stages. His experience includes arbitrations,

17 trial, and appellate litigations, and administrative and

18 regulatory proceedings. And you might have seen Patrick

19 in the news recently, because he is currently representing

20 the Trump Administration in front of the Supreme Court on

21 the question of the tax — the tax issue, on whether or

22 not the President is required to give his tax returns to

23 the public.

24 We also are joined here by Sigmund Schutz, with

25 courtroom successes for public companies, regional

4

1 businesses, insurers, and entrepreneurs. Sig Schutz is a

2 trial lawyer with more than 20 years of hearings to his

3 credit, including jury trials in state and federal court,

4 multi-week complex arbitrations, and high-stakes

5 administrative hearings. In 2016, Sig won a $13.6 million

6 jury verdict in a complex business case; and he has been

7 counsel of record in many state and federal reported

8 judicial decisions, including nearly 30 appeals.

9 So we have a wide variety of experience here and

10 perspective on a number of issues that are facing us. And

11 so I just — to begin things out here, I’d like to welcome

12 the panel. Thank you, all, for joining us here to provide

13 your expertise to us today.

14 MR. JACQUES: Thank you, Matt.

15 MODERATOR GAGNON: I’m happy to have you.

16 So I’m going to start off. And the way that this

17 is going to work is I’m going to ask a question, and I’m

18 going to let the panel take it.

19 So I’m going to just go ahead and get things

20 kicked off right here with perhaps the most simple and yet

21 often repeated question that I’ve gotten from our

22 supporters, as well as people that I’ve just talked to in

23 the general public.

24 In response to a situation like this, where a

25 virus is spreading through the country and governments are

5

1 seeking a lot of power to try to respond to it, there have

2 been curtailments on constitutionally-protected liberties

3 that citizens have enjoyed for a very long time; and our

4 lives have changed. We’ve been under quarantine.

5 Businesses have been forced to close and change practices,

6 et cetera. Most of this is done with emergency power

7 declarations. And you saw Janet Mills just issued an

8 extension on her emergency power through June 11th.

9 Starting yesterday, she made that extension, and the

10 executive orders that are signed within that.

11 So my question to the panel is the same one that

12 I’m getting: How is any of this constitutional? I don’t

13 know who wants to kick things off here, but I think that’s

14 the big question of the day.

15 MR. STRAWBRIDGE: I’m happy to take the first

16 swing, and then everyone else can correct me. But, you

17 know, the first question one gets when they ask: What is

18 constitutional? The question is: Well, what part of the

19 constitution and which constitution are we talking about?

20 The Federal Constitution that we have gives the

21 Federal Government enumerated powers, limited powers; and

22 it reserves through the Tenth Amendment to the states all

23 powers that are not expressly conveyed to the Federal

24 Government. And the general rule when it comes to public

25 health, public safety measures, is that those are

6

1 primarily the states’ powers. The Federal Government

2 doesn’t have a primary police power, as we refer to it, a

3 general power to regulate in the name of safety or health

4 or welfare. That’s generally a state power.

5 Now, there are individual constitutional

6 provisions that may come into play from time to time. The

7 Federal Government obviously is charged with issues

8 surrounding quarantine, particularly with respect to

9 immigration from foreign countries and travel between the

10 United States and foreign countries. The First Amendment

11 can impose some limits on government action, even in times

12 of emergency. And there may be a couple other provisions

13 here that are possibly the Privileges and Immunities

14 Clause of the Fourteenth Amendment that may have something

15 to say about state action. But that’s going to be far and

16 few in between.

17 For the most part, you’re going to have to look

18 to state government and state laws to determine whether or

19 not emergency powers or emergency declarations push

20 constitutional boundaries. And as we may have learned, or

21 some of us may have learned for the first time in this

22 process, Maine’s legislature and Maine’s statutory scheme

23 has — actually gives a fair amount of power to the

24 governor to declare emergencies and to assume emergency

25 power, which include — and I’m not making this up; it’s

7

1 right there in the statute — to suspend laws and rules as

2 necessary to meet with the threat. I think that there is

3 some consideration, probably properly so, that that maybe

4 needs to be changed. It’s probably not going to be

5 changed any time in the middle of what we’re enduring

6 right now, but that’s —

7 So we start from the process that this is a

8 decision largely for the states to make. And Maine, at

9 some point in time, has made the decision to give the

10 governor a fair amount of power in this area. That is not

11 to say that the power can be exercised arbitrarily. And

12 we can talk about ways or specific scenarios to challenge

13 this.

14 But, you know, the first question is: Is this

15 constitutional? The answer is going to be mostly yes, and

16 it’s going to be very difficult to convince a judge, state

17 or federal, to challenge directly the authority that has

18 been given to the governor by the people of Maine through

19 that their legislature. So that’s a very high-level

20 answer, and there’s a lot of doubt — you know, there’s a

21 lot of devil in the details that we can discuss further,

22 but that’s one way. I think it’s useful to start

23 answering the question.

24 MR. JACQUES: And I think, Matt — I tend to

25 agree with Patrick that I think it’s going to be very

8

1 hard, at least where we are right now, is the background

2 of the pandemic and historic police powers that have

3 happened in the past to come and say that the stay-at-home

4 order, which is probably the most concern of most people,

5 is unduly burdensome and somewhat unconstitutional,

6 particularly when, at least initially, I think, the

7 stay-at-home orders, not only by the governor of the State

8 of Maine, but also elsewhere in the country, are —

9 they’re not meant to be a permanent state of affairs, but

10 almost like a timeout period — you can tell I’ve had

11 kids — but a timeout or a holding pattern to get the

12 state, get various states ready for what is the next

13 phase, when it’s safe to do so.

14 MR. SCHUTZ: And I’ll just add, I mean, the

15 states drive their legal authority to impose public health

16 interventions from a general police power, which includes

17 an obligation to protect public health. Now, that power

18 is reserved to the states under the Tenth Amendment to the

19 U.S. Constitution, and it’s described as a very broad

20 power. And that power is typically only restrained by

21 state statutes or the Federal State Constitution.

22 So the answer to the question, I would — I agree

23 with Keith and Patrick. I mean, are there limits on

24 federal, state, or local emergency authorities? Yes, but

25 the scope of those limits is unclear and complicated. And

9

1 some states have substantive or expressed limitations on

2 these emergency powers, either by executive order or

3 otherwise. There are — in some instances, procedural

4 protections and laws vary widely. And sometimes a court

5 order may be required or some other form of judicial

6 review may be available.

7 And finally, there’s a question of

8 constitutional, both under the federal or state

9 constitutions, constitutional limitations on state power.

10 And prior to this pandemic, the — you know, we look back

11 to cases at the turn of the century involving, you know,

12 the flu and so on and cases involving things like

13 mandatory vaccinations and quarantine orders. And that

14 old authority does suggest that, you know, emergency

15 government powers are not unbounded; and they have to be

16 exercised consistent with certain first principles. But

17 the courts tend to defer to the executive branch in the

18 exercise of these types of powers to protect public

19 health.

20 MODERATOR GAGNON: Great. It’s a good way to

21 kick things off here.

22 And by the way, I should mention, since we have

23 so many participants on this forum, which is fantastic by

24 the way — thanks, everybody, for being here. The chat

25 room, in terms of questions being submitted as we’re

10

1 going, I’m not sure we’re going to really get to many of

2 those questions, because a lot of you submitted questions

3 ahead of time; and I’ve got a pretty long list as it is.

4 So I’ll just say this to the panel: If you see

5 your little chat window there, and as we’re talking, if

6 somebody has a comment or a question that’s related to

7 what you’re saying at any given time and you wanted to

8 kind of use that as a jumping-off point to chat really

9 quickly about something that you’re seeing addressed

10 there, please feel to do that as we’re talking. But just

11 for the rest of the peanut gallery, if you’re out there

12 asking question on the chat, I’m not sure we’re going to

13 be able to get to many of them. So just an FYI.

14 So the second question is sort of related to the

15 first, and this is, I think, borne of not only my own

16 legal lack of experience here, but a lot of other

17 people’s. But, you know, doing cursory Google searches

18 and whatnot, we always see things that say that in order

19 to restrict ungovernable rights so far, the government

20 actually has to have rules that are narrowly tailored to

21 fulfill a legitimate purpose while limiting the freedom as

22 little as possible.

23 And the question really becomes then: Do the

24 broad shutdowns of entire states, the kind of things that

25 we’ve seen in these orders so far, do that — does that

11

1 meet the standards for trying to narrowly tailor these

2 orders to restrict freedoms as little as possible? Or is

3 there room there to challenge sort of the broadness of it

4 all?

5 MR. STRAWBRIDGE: You know, the specific

6 constitutional standard really kind of varies based on

7 what is the alleged right or constitutional prohibition

8 that’s being challenged. So you’ve seen some success in

9 some jurisdictions with challenging overly restrictive

10 prohibitions on gathering for speech in the form of

11 protest or for religious worship. And that’s because the

12 First Amendment provides, you know, a dedicated protection

13 for speech and for the exercise of religion. And the

14 courts have imposed a pretty high standard for government

15 action that restricts it. And so even in the face of what

16 is generally considered, I think, probably a situation

17 where the courts are going to lean highly deferential to

18 government action, there are still limits. And the First

19 Amendment is probably the best, the strongest bulwark one

20 has if one can fit their claim under the First Amendment.

21 And so in other jurisdictions, you know,

22 prohibitions on any gathering for church worship have been

23 struck down as not sufficiently tailored or not containing

24 enough exceptions. For example, I think that the Kentucky

25 case did not permit, you know, drive-in services where

12

1 people could still remain in their cars and maintain that

2 safe social distance. And so that one has been struck

3 down.

4 In Maine, we have the case of a church in

5 Orrington, and at least on the temporary restraining

6 order, which is a fairly light standard and kind of a

7 quick order, Judge Torresen decided that Maine’s order

8 provided sufficient flexibility to ensure that drive-in

9 worship could take place; and, you know, the restrictions

10 beyond that were not sufficient to violate the First

11 Amendment, at least in terms of this sort of preliminary

12 view given at the TRO stage.

13 I do see — I did see some people ask in the

14 window, I just thought I’d address it really quickly, as

15 to whether or not the statute that gives Maine’s governor

16 the power she has, or the office in this case, Governor

17 Mills has in the time of emergency is itself

18 unconstitutional. And there’s an interesting

19 separation-of-powers issue that could be explored there,

20 whether or not this amounts to giving a legislative power

21 to the governor or that it can be viewed as consistent

22 with the way that the Maine government is structured in

23 the constitution. I’d say it’s interesting, which does

24 not necessarily mean it’s going to be compelling,

25 especially if you ask an individual Superior Court justice

13

1 or members of the law court to try to make that call in

2 the middle of a public health emergency. They would

3 probably focus on the fact that the statute does bound the

4 governor in some ways. It poses a few conditions on

5 emergency proclamations. They have to run for 30 days at

6 a time, and presumably, nothing stops the legislature if

7 it’s really upset with what the governor is doing from

8 trying to reconvene and restrict her powers. And my guess

9 is if you actually try to challenge it in court, the

10 court’s going to ultimately determine that this did not

11 cross the line of separation of powers. I’m not saying

12 that that would not necessarily be the right or the wrong

13 decision, but realistically, I think that’s what would

14 happen.

15 MR. JACQUES: And I think particularly without

16 having some legislative intervention, in other words, the

17 legislature coming in to try and challenge the governor

18 usurping her powers, I think it would be a really tough

19 argument before a court. I think there was a Wisconsin

20 Supreme Court decision recently that came down where the

21 Court sided in favor — or against the governor continuing

22 to usurp some of her emergency power. That was a

23 challenge that was brought by the legislature, basically

24 saying that she was stepping into their — stepping on

25 their feet basically, and starting to take a lot of

14

1 legislative power that she wasn’t entitled to do so. I

2 think as long as the legislature here sort of steps back

3 and doesn’t do anything to challenge the exercise of

4 emergency power, the Court’s going to be hard-pressed to

5 get involved, particularly given the current, frankly,

6 status of the court system right now with the shutdown.

7 MR. SCHUTZ: I mean, the question was about

8 overbreadth. I mean, I think that is an interesting area,

9 and it can come up in instances where the government

10 arbitrarily discriminates in favor of or against certain

11 groups or certain types — potentially, certain types of

12 businesses.

13 In the foundational case on the scope of public

14 health authority from the U.S. Supreme Court is a 1905

15 case, Jacobson versus Massachusetts, in which the Supreme

16 Court upheld the authority of states to mandate

17 vaccinations, in that case, smallpox. And the decision

18 simultaneously recognized, on the one hand, broad public

19 health authorities for states or localities, as well as

20 limits on that authority. The Court referred to limits

21 where the State acts in an arbitrary or an oppressive way,

22 or where the State acts where there’s no real or

23 substantial relation to the goal it’s attempting to

24 accomplish or where there’s a palpable invasion of rights.

25 And if you think about that case, I mean, if you can’t

15

1 protect your own body from being physically invaded by a

2 vaccination, whether you’re — whatever your view of

3 vaccinations is, the Court isn’t likely to concede that,

4 you know, you have a right to speak or worship or even use

5 your property in a way that isn’t harmful to others. So I

6 think that is an important, you know, case; and that is

7 the most recent pronouncement from the U.S. Supreme Court,

8 although, it’s from 1905.

9 MR. STRAWBRIDGE: I’ll just follow up really

10 quick, Matt; and maybe this is where we can go. And I

11 think that Sig makes a good point, which is that, you

12 know, we’ve mostly, I think, been, you know, giving

13 everyone the bad news here. The bad news is — I mean, I

14 think we’re all aware of how frustrating the assertion of

15 state power is in this case; and I think we’re all keenly

16 aware of the economic damage that is resulting from the

17 whole situation; and how much of that you want to

18 attribute to the government’s actions and/or to the crisis

19 itself is a fair game. And there’s a lot of room for

20 debate, and I’m sure that we all have disagreements with

21 the categorizations that have been made in some of the

22 government’s orders so far. And the closer you can get to

23 demonstrating a truly arbitrary distinction between

24 businesses, the better off a chance you are of challenging

25 this. And, you know, one that springs to mind, for

16

1 example — and I’ll admit that I haven’t gone to the next

2 level and looked at the regulatory guidance on this, but

3 there are — I know, for example, right now that the

4 scheduled re-openings distribute — you know,

5 distinguishes between bars and restaurants. And it’s not

6 entirely clear to me that in all cases that that isn’t a

7 somewhat arbitrary distinction, because whether or not one

8 is a bar or a restaurant doesn’t really have a lot to do

9 with necessarily how closely people are packed or how the

10 virus might be transmitted in a particular space.

11 So theoretically, there might be room to make

12 challenges around the edges of these orders, particularly

13 to the extent that you think one class of people is being,

14 you know, characterized differently than another, totally

15 inconsonant with the risks.

16 And I see someone in the chat has brought up the

17 Ebola quarantine case from a few years ago under Governor

18 LePage. That case ultimately settled, but the initial

19 ruling by the Superior Court in that case found that the

20 quarantine order on her was overbroad. And it did so

21 based on the view that the quarantine restrictions that

22 were being imposed were only consistent with an airborne

23 transmission, and there just simply wasn’t any evidence in

24 that case of airborne transmission of the Ebola virus. So

25 it felt that the restrictions were overly broad. But it

17

1 did uphold the ability to impose some restrictions, even

2 in that case. I also just think that the reality of, you

3 know, a few examples of Ebola, which, you know, perhaps

4 justifiably were causing a lot of concern, are just not

5 going to be treated the same way that the kind of, you

6 know, obvious pandemic and the — with substantial

7 national consequences that’s happening right now are. The

8 courts are going to be far more reluctant to intervene or

9 to second guess executive decision-making, whether it be

10 democrat or republican executives, in this — in this

11 scenario.

12 But I don’t — I don’t mean to suggest that

13 there’s no route of appeal here. And we can explore some

14 of the other scenarios. But it’s — I mean, I think we’re

15 just trying to be realistic. It’s — the states, under

16 our constitutional system, have broad power; and it’s

17 difficult to — it’s difficult to challenge in this type

18 of a scenario.

19 MR. JACQUES: And you can look back to, for

20 example, the Jacobson case and say, okay, that’s a 1905

21 case, and that’s — you know, is that still precedent?

22 But it is. And that case held pretty strongly that

23 there’s no constitutional right for a person to be free of

24 every restraint, that basically as a condition of

25 citizenry, you’re subject to a formal restraint of public

18

1 good. And later on in 1945, the Supreme Court, in

2 connection with a vaccination case again, talked about the

3 states’ rights to public safety. And so those are just

4 tough burdens to overcome, particularly when — and I

5 think as Matt said at the beginning, this is sort of

6 unprecedented. This is — we’re all learning as we go,

7 somewhat, not only legally, but also medically as to —

8 and from a government perspective as well.

9 MODERATOR GAGNON: To keep going, I’d like to

10 kind of continue this conversation with a sort of related

11 question. I’ve seen a number of questions in — or

12 comments in the chat about the sort of — the extension of

13 the emergency order and who the arbiter of what emergency

14 is or isn’t and what authority that’s really granted.

15 Governor Mills announced yesterday, as we all

16 know, that she’s issuing another extension on the civil

17 state of emergency until June 11th; and this is now the

18 second extension since her original order on March 15th.

19 And that means we’re now going to be at least, probably

20 more, frankly, but at least three months of the year where

21 you have self-appointed emergency authority by the

22 governor resting in the hands of the chief executive. And

23 this concentration of powers is troubling to a lot of

24 people.

25 So really, the question is this: Are there any

19

1 legal constraints on these emergency powers and

2 declarations? Can they continue on forever? Is there any

3 legal recourse to restrain that power or at least subject

4 it to legislative review? And is there any sort of

5 arbitration on what is or is not an emergency somewhere?

6 It’s a pretty big question, but I’d love to get your

7 thoughts on it.

8 MR. JACQUES: The statute itself’s language is

9 pretty broad. And I’ve got it in front of me. It

10 basically says, and I’ll paraphrase, that whenever a

11 disaster or civil emergency exists or appears eminent, the

12 governor shall by oral proclamation declare a state of

13 emergency. And it doesn’t really provide any sort of

14 definition as to what is the civil emergency or what is

15 the disaster that’s being contemplated. It just gives the

16 governor fairly broad powers to declare — to declare a

17 civil emergency. And I think barring the legislature

18 coming in and trying to pull those rights back, frankly,

19 come June 11th, I think she has the authority to declare

20 another state of emergency.

21 MR. STRAWBRIDGE: Yeah, I mean — go ahead. Go

22 ahead, Sig.

23 MR. SCHUTZ: All right. I just briefly was going

24 to say that I think that the answer to your question,

25 Matt, depends on the nature of the — the nature of the

20

1 rights that are affected by these emergency orders. You

2 know, the scope and content of these orders vary state to

3 state very, very broadly. We talk about a — you know,

4 let’s talk about, you know, an invasive or controversial

5 public health intervention, such as depriving people of

6 personal liberty, forced testing, forced vaccinations.

7 How about the power to apprehend and detain individuals or

8 groups in mandatory quarantines, potentially isolating

9 people to quarantine them? When you start getting into

10 the more extreme exercise of power, that’s where there’s a

11 greater likelihood, I think, of successful challenges and

12 successful judicial review.

13 Where there’s more of a light touch, you know,

14 guidance or suggestions or recommendations or even

15 requirements, but they’re not really enforced, I think

16 that’s, you know, easier for the government to try to get

17 by with that stuff than engaging in these kind of more

18 extreme types of measures.

19 MR. JACQUES: And I think that perhaps the — if

20 you’re going to challenge the governor’s actions, it’s not

21 so much challenging the declaration of a state of

22 emergency, but rather the individual executive orders that

23 come — that follow that basically, because that’s where

24 the real actions and prohibitions are being taken.

25 MR. STRAWBRIDGE: Yeah, I would say that the

21

1 statute does impose some deadlines. It does impose some

2 requirements. I think that there’s a — if the state of

3 emergency extends 90 days, there’s a requirement to

4 convene the legislature by the 80th day. I think there

5 might be some open-to-interpretations as to what’s an

6 extension of an existing order versus what’s a new

7 emergency order. So there are some limits on this, and

8 the legislature always has the power to act.

9 I do want to just emphasize a point that, you

10 know, those of us who lean conservative, you know, ought

11 to believe, or at least in my view, you know, shouldn’t be

12 a short shrift to, which is that, you know, the

13 legislature ought to be the primary source of how we make

14 our decisions. And it’s always frustrating when we kind

15 of find ourselves in the middle of a situation that we

16 didn’t realize what the legislature had done, but the

17 courts — we should not, in a normal situation, be looking

18 to the courts to make the hard decisions that need to be

19 made through the democratic process, like how much power

20 we’re going to give to the various state departments in

21 the middle of an emergency.

22 So I don’t know that it’s necessarily a bad thing

23 that the court — that the road to court enforcement or

24 court challenge to these types of orders is difficult,

25 because I think normally we want the people, through the

22

1 legislature, to make those decisions and not leave them to

2 individual judges.

3 So I guess from that perspective, from a

4 structural perspective, I don’t really have a problem. I

5 guess, you know, obviously what this has shown a spotlight

6 on is just how much power the legislature has conceded

7 away to the executive; and that may not have been a wise

8 decision. I think there are certain members of the

9 legislature who are regretting that right now. And so

10 that’s something that — you know, I hope people take to

11 heart, both those who are in the legislature as well as

12 those who vote for the representatives in the legislature,

13 those votes matter; and the statutes on the books matter

14 tremendously in these areas where the courts are going to

15 be particularly reluctant to intervene.

16 MODERATOR GAGNON: All right. Moving on here.

17 Yesterday, the Wisconsin Supreme Court issued a close

18 decision striking down Governor Tony Evers’ decision of

19 that state’s stay-at-home order. The decision limited his

20 authority to make statewide rules during more emergencies,

21 and it required him to instead work with the state

22 legislature regarding actions to mitigate the outbreak.

23 The justices wrote that the Court was not challenging the

24 governor’s power to declare emergencies, but, quote, in

25 the case of a pandemic which lasts month after month, the

23

1 governor cannot rely on emergency powers indefinitely.

2 So this sort of dovetails with what you guys were

3 all talking about already. But what is a your thought on

4 that decision? And do you think that it’s likely that

5 legal challenges to stay-at-home orders specifically, like

6 this one in Wisconsin, would be fruitful in other states,

7 and particularly Maine?

8 MR. STRAWBRIDGE: I mean, so fundamentally, my

9 answer to that is no; and it’s for a couple of reasons.

10 One, the Wisconsin statute is different than the Maine

11 statute, and as I recall — I read that decision briefly

12 last night — the Wisconsin issue there was the governor

13 had a limited period of time in which he could actually

14 issue an emergency order. It then fell — the question

15 then was whether or not the governor could basically

16 delegate to the commissioner of their health department to

17 impose longer restrictions. And the Court essentially

18 held that under Wisconsin law, that power did not exist

19 without at least going through normal notice and comment

20 rulemaking procedures and that there was sufficient time

21 to conduct those procedures and that without having —

22 that the pandemic did not give a license to simply ignore

23 those procedures if you were going to be imposing new

24 rules. So it didn’t, I think, even necessarily hold that

25 the HHS ultimately couldn’t impose those provisions, but I

24

1 think it did hold that they had to — they had to do them

2 through their normal statutory processes, which, of

3 course, they were not interested in doing.

4 So, you know, I would also just say that the —

5 Wisconsin has an elected Supreme Court. It’s a bitterly

6 divided court, I think it’s fair to say. And it is

7 willing to — it is willing to enter into the fray in

8 these issues, perhaps more so than I think the Maine

9 courts are, which tend to be fairly deferential in these

10 aspects. And I have been in the situation of arguing in

11 favor of that deference. (Inaudible due to technical

12 interference.) I’ve been in a position of challenging

13 that deference, and it can be very frustrating for

14 litigants and for advocates alike, the degree of which the

15 Maine courts are sometimes especially deferential to state

16 action, although, maybe not for Keith, since that probably

17 benefits his client a lot. But it’s just how it is up

18 here, and I think that the courts are particularly

19 reluctant to veer away from that process.

20 MR. JACQUES: And I think a distinguishing

21 feature in the Wisconsin case is that was a case where the

22 legislature acted to try to rein in the executive powers

23 of the governor, and I don’t think you’re going to see, at

24 least I don’t believe you’re going to see, the Maine

25 Legislature act in that way. I mean, I think you’ve got a

25

1 legislature that before adjourning in March actually gave

2 the governor additional emergency powers, or at least

3 broadened the emergency powers that she had. And so I

4 think if any — any lawsuit that would be brought, similar

5 to the Wisconsin court, would be framed much differently;

6 because it would be brought by either individual citizens

7 or a group of citizens as opposed to a legislative action

8 against the governor.

9 MODERATOR GAGNON: All right. Continuing on. We

10 have a question from Bob Fuller.

11 While it seems unlikely to me that the

12 legislature has any immediate role to play in the current

13 scenario, though I welcome your thoughts on the issue,

14 what sort of legislative response to similar medical

15 emergencies do you foresee emerging? And could you give

16 us your thoughts as to what sort of legislation might be

17 beneficial and what sort would not?

18 And this goes into what I think I’ve seen on a

19 number of folks in the chat asking the question of what

20 you might recommend. Put on your advocate’s hat for a

21 minute, and actually just tell us what you think might be

22 prudent for us to explore in the aftermath of this to try

23 to make this system better. Who wants it?

24 MR. SCHUTZ: I’ll just raise one issue and, you

25 know, one of the checks or questions that this raises.

26

1 We’ve been talking about opportunities for judicial

2 intervention. Patrick raised correctly the fact that the

3 legislature has a key role in making the law. It

4 ultimately — you know, the buck stops, to a large degree,

5 with the legislature when it passes laws authorizing the

6 governor to exercise wide authority. There’s also the

7 question of federal power. And, you know, there is some

8 question about what the — what the scope of the Federal

9 Government’s authority may be to intervene or potentially

10 take decisions at odds with the decisions taken by the

11 states, either by — in a mandatory type of way or by, you

12 know, using the power of the purse and the other levers

13 that the Federal Government has to persuade, cajole, and

14 convince the states to go along with the Federal

15 Government’s bidding.

16 But, you know, one of the — I’m sure this

17 pandemic will generate a lot of new legislation. One of

18 the most important pieces seems to be better coordination

19 between the Federal Government and the states, and perhaps

20 between neighboring states; because there’s such a

21 patchwork of responses to this pandemic across the states,

22 often without much coordination between the states, and in

23 some cases, limited coordination with the Federal

24 Government.

25 So you’ve got different states working at cross

27

1 purposes with one another, perhaps acting independently of

2 the Federal Government, making potentially divergent

3 decisions that may — that are at odds with one another,

4 and rather than be mutually reenforcing, are mutually

5 undermining.

6 So I think that one of the outcomes of this is

7 probably going to be a major federal effort to get new

8 legislation pulled together and to respond at that level

9 and to look for ways to better coordinate with the states

10 in ways that are protective of public health and

11 protective of civil liberties.

12 MR. STRAWBRIDGE: I think — I mean, there’s a

13 lot that the legislature could do. You could look at the

14 provisions of the statute, in this case, 37-B, that gives

15 the governor these powers. And there are some exceptions

16 to that. For example, the governor’s not allowed to

17 exercise eminent-domain power pursuant to an emergency

18 proclamation. And there are also restrictions on the

19 governor’s ability to suspend certain environmental laws

20 during an emergency. And the legislature could easily

21 impose other restrictions. If there is going to be, you

22 know, effects on private businesses that were going to

23 exceed two weeks, it could restrict the governor’s ability

24 to do that or require the legislature to be called into

25 session after the first 30 days of an emergency

28

1 proclamation instead of 90.

2 There’s lots the legislature could do, assuming

3 that it can get the necessary majority. And I suppose —

4 you know, not to inject another contentious issue into

5 this, but I suppose there’s always the possibility of

6 using the referendum process to attempt to impose the

7 control from the statute, too. But there are things that

8 could be done if people are uncomfortable with the amount

9 of power that the governor has in this case, but I do

10 think they’re best going to be done through regulations as

11 opposed to authorizing some type of court action.

12 You know, I’ve seen one thing popping up in the

13 chat, which is at least tangentially related to this,

14 which people are asking about: Well, what about

15 enforcement? Who does enforcement fall to? And what is

16 the ability of the — or what is the discretion for either

17 localities and/or individual law enforcement officers to

18 choose not to enforce?

19 And I do think that there’s a lot about these

20 orders that are not self-enforcing and that generally

21 require some degree of cooperation, if not from local

22 authorities, from the populace. And I think an example of

23 that, and one of the more, you know, controversial

24 examples in the current emergency proclamation, is the

25 14-day quarantine for out-of-state residents. I don’t

29

1 think there’s really a meaningful enforcement mechanism in

2 place for that. They can impose penalties for people who

3 are caught doing it, but I don’t think — you know,

4 they’re not — they’re not shutting down the borders.

5 They’re not turning people away. They’re not doing

6 anything that I’m aware of that can meaningfully determine

7 whether or not people who are coming into the state right

8 now are actually barricading themselves in their house for

9 14 days with food they brought in from out of state to

10 prevent themselves from, you know, having any contact with

11 people in Maine.

12 And, you know, individual officers are obviously

13 going to be empowered as to whether they tell someone, you

14 know, on the beach to politely move or they take them into

15 custody and arrest them. And that — and the enforcement

16 this may give itself may give rise to claims of arbitrary

17 processes by the law enforcement officers.

18 So I just wanted to flag that to say that it’s

19 not necessarily clear that all of these powers can be

20 meaningfully enforced by the state government. And I

21 think you’re seeing that a little bit, and I think you’re

22 seeing some concern about the political process, at least

23 in some of the progress that has been made in getting the

24 governor to accelerate the opening of businesses in

25 counties that are not nearly as affected. A lot of people

30

1 are noting, I think rightly so, that a lot of the rural

2 counties just simply do not have the same problems and

3 probably are not subject to the same risks, but the urban

4 counties are; and it doesn’t make a lot sense to treat

5 them differently. And at least there’s been some modest

6 progress in that direction.

7 But ultimately, political actors, whether they be

8 the governor or the legislature, respond to political

9 pressure. I mean, that is — that is the goal. So the

10 more uncomfortable that the citizenry feels and the more

11 willing they are to take that out on their elected

12 officials, the more likely you are to see the elected

13 officials respond to those concerns.

14 MODERATOR GAGNON: This, I think, is also related

15 to another several questions I saw in the chat, which is

16 actually nicely in line with one of the questions I was

17 planning to ask you anyway.

18 So that question would be this: If I put you in

19 charge, deputized you to be the attorney of record in this

20 and asked you to go beat up on these restrictions and to

21 attack them and try to roll them back in some fashion, and

22 I gave you an unlimited budget to do it, and you just were

23 able to do whatever it was you thought was most fruitful,

24 how would you attack these rules and regulations now? How

25 would you go after this to try to get some of these

31

1 things — some of these restrictions undone? Or is that

2 fruitless? Should we do that? Should we not do that?

3 But that idea of having unlimited money and going after it

4 right now, it would at least provide us some sort of idea

5 of what’s possible.

6 MR. JACQUES: Well, I might be on the more

7 liberal side of Patrick on it, but I don’t think that the

8 mechanism is to try to attack most of this stuff legally.

9 I think there’s got to be some effort done in Augusta to

10 try to — try to control the message a little bit and try

11 to control what can be done, what are the — where the

12 areas are that we can continue to loosen these

13 requirements. And at the beginning, I talked about how,

14 you know, these stay-at-home orders aren’t meant to be a

15 permanent structure. It’s really a time for people to

16 step back and then try to rationally get to the point

17 where we can re-open the state while still protecting

18 public health and safety. And I just think there has to

19 be more messaging going on to try to create ways to be

20 able to do that.

21 MODERATOR GAGNON: I don’t know if the members of

22 the panel have any other (indiscernible), but I guess

23 really the core of it is even if it’s things that you’re

24 doing on the edge of what the government is doing right

25 now — I mean, the big concern among many of us right now

32

1 is that whether it would survive in court or not, these

2 assumptions of massive powers by state governors

3 particularly are big-time threats to the human liberty in

4 general; and we’re pretty uncomfortable with what we’re

5 seeing.

6 So how do you try to push back against that,

7 legally speaking? Or is it even not possible?

8 MR. STRAWBRIDGE: No, it is possible. You can —

9 you can — you can — you can take a shot. You could

10 argue for a rather robust interpretation of federal

11 privileges and immunities that would include interstate

12 travel, for example, and you could try to attack the

13 14-day quarantine as unwarranted, given what the

14 experience is in other states and the lack of evidence and

15 perhaps the ability of least-restrictive measures. You

16 could certainly mount any number of challenges to what you

17 would consider arbitrary or capricious divisions between

18 which businesses can open up, which locales are under

19 severe restrictions versus less-severe restrictions.

20 There are ways to do that.

21 I think that a more effective line of attack, if

22 you actually had the ability to fund it and do it, and Sig

23 can probably speak to this, is transparency laws. I think

24 certainly in this situation, there should — the need for

25 transparency in public decision-making is very high, and I

33

1 think there is justifiably some frustration about the way

2 that the legislature has been cut out of this

3 decision-making process by the executive branch, whether

4 that’s pursuant to her statutory power or not, as well as

5 open-meetings issues and open-records issues. And I think

6 Sig can probably share some rather disturbing

7 justifications that have been offered in respect to some

8 FOAA assertions by the — by the Department of Health in

9 Maine.

10 So there are ways to attack this, but the easiest

11 way is going to be to bring about the political pressure

12 that will convince people to do it. I do — I think Sig

13 should respond to that in part, because he’s the State’s

14 preeminent FOAA expert; but I also — I will be happy to

15 address the contact-tracing hypothetical, which is coming

16 up a lot in the comments; and I know people want to hear

17 about that. But we can come back to that in a minute.

18 MODERATOR GAGNON: Absolutely. And, Sig,

19 actually, that’s perfect to toss to you right now; because

20 one of my next questions was actually going to be about

21 these transparency laws. And, you know, the governor was

22 caught having secret meetings without notifying the

23 public. You’ve got the legislature cut out of a lot of

24 things. You’ve got a lot of municipal questions, too,

25 about notice and how meetings are done and public

34

1 testimony and so many other things.

2 What is the — what is the world of transparency

3 in government look like after this?

4 MR. SCHUTZ: Well, it hasn’t been good. It’s

5 taken a big hit as a result of this situation, and We the

6 People are much less informed about what our government is

7 up to, as well as the basis for their decisions about this

8 situation in the name of sort of — you know, frankly, for

9 the stated purpose of suppressing information, CDC is

10 withholding data that is public data that we ought to have

11 to make our own value judgments to make our own decisions

12 about the propriety of the decisions that are made by the

13 State to, you know, lock down different counties or

14 justify emergency orders and so forth. I mean, without

15 access to government information, we can’t make informed

16 decisions about these policies that are being, in some

17 instances, shoved down our throats.

18 So I think there’s a big transparency problem

19 right now in state government. And, you know, one of the

20 stated justifications for suppressing information on

21 COVID-19 cases by municipality is to keep as many people

22 scared as possible to keep people indoors and compliant

23 with emergency orders. I mean, that’s the stated

24 justification for suppressing this information. Now, my

25 view is, you know, whether it’s public record or not, it

35

1 should not be the product of a value judgment. It’s our

2 information, and we ought to have access to it; and we

3 then can make whatever decisions we wish.

4 Back to your question, Matt. I mean, I don’t

5 think a court challenge is probably a prudent expenditure

6 of a lot of money. Not that it would be hopeless, but I

7 think the odds would be long for success. I think some of

8 the other steps that people are taking, some civil

9 disobedience, the protests, the advocacy, you know, with

10 the legislators, organizing, those activities, I think,

11 are more effective ultimately in persuading the governor

12 and legislators to take action than, you know, than a

13 courtroom battle; because the courts, frankly, just aren’t

14 really equipped to understand or weigh in in an informed

15 way the science and the public health policy issues. I

16 think in most states, including in Maine, the courts are

17 reluctant to second guess, you know, the PhD scientists

18 who come in with, you know, fancy resumes and so forth

19 when it comes to making these types of decisions.

20 Now, as time moves forward and the kind of

21 urgency of the situation starts to abate or to the extent

22 the government starts taking really dramatic steps, you

23 know, mandatory steps, you know, there, I think the courts

24 may be more willing to step in.

25 MODERATOR GAGNON: All right. Great. So let’s

36

1 continue on. I know, Patrick, you had mentioned a moment

2 ago that it might be a good time to talk about contact

3 tracing. And that actually was one of my questions

4 anyway.

5 The extension of government power in a situation

6 like this to be able to literally track you, keep

7 information on you, your movements, what you’re doing, who

8 you’re with, et cetera, is a very big concern for a lot of

9 people; and the governor has already started requiring

10 restaurants, for instance, that re-open to keep tabs on

11 who is actually showing up there so that they can be —

12 you know, that information could be given to the CDC in

13 the event that there is some sort of an outbreak of COVID

14 in a restaurant or some other location and they want to

15 trace who they had contact with.

16 So as it relates to contact tracing, is there any

17 sort of constitutional question that you think exists

18 there? And I certainly would think so, but I’m not a

19 lawyer. So I’d love to get your thoughts on exactly what

20 the constitutionality of that kind of action is and

21 whether or not you can challenge that.

22 MR. STRAWBRIDGE: Yeah, I mean, the answer to

23 that is yes. When we start talking about some of the more

24 extreme measures here, such as contact tracing or

25 physical, you know, separation orders, that sort of thing,

37

1 it gets much more difficult, I think, for the government

2 to justify that; because they’re going to have some

3 serious constitutional concerns come into play.

4 Now, you know, a lot of it depends on what’s

5 done. Contact tracing as done, for example, as I

6 understand it, in South Korea, I think we’d run into a

7 number of obstacles here in terms of, you know, mandatory,

8 essentially, like, geo-monitoring of people, forcing

9 people, even those not showing symptoms or not

10 demonstrated to have been in contact with somebody with an

11 infection and requiring them to physically stay in a

12 particular location for a period of time, essentially, you

13 know, either requiring people having their phone and to

14 check in at periods times, that’s going to raise a lot of

15 issues. It’s going to raise a lot of privacy issues,

16 Fourth Amendment related issues. And I don’t think that

17 the government’s going to be in a position to kind of

18 impose that draconian style of contact tracing on

19 everybody just as a matter of public health.

20 Now, contact tracing as a condition of taking

21 advantage of certain, you know, businesses or aspects is a

22 different question that (inaudible due to technical

23 interference).

24 MODERATOR GAGNON: I think we might have lost you

25 there, Patrick. If you can hear my voice, you froze on

38

1 us.

2 I’m not sure if any of our other panelists want

3 to take over some thoughts on that really quickly before

4 we move on, but hopefully we’ll get Patrick back here in

5 just a second.

6 MR. JACQUES: Well, I think what Patrick’s

7 talking about is it really depends on the degree of the

8 contact tracing and how limited it is. The broader it is,

9 the more likely it’s going to be subject to some

10 challenge. And the more limited it is and the more short

11 term it is to — in able to achieve a legitimate

12 government interest, like being able to re-open

13 restaurants, bars, stores, I think the more likely a

14 court’s not going to have a real concern with it.

15 MODERATOR GAGNON: All right. So moving on with

16 my next question here. In the aftermath of COVID-19,

17 there will undoubtedly be a vaccine that is developed to

18 help fight infections. The government will likely do

19 everything in its power to convince and cajole the

20 citizens to get the vaccine to protect themselves.

21 Obviously, last year, Maine lived through a debate on

22 government power to mandate vaccinations as a prerequisite

23 for children to attend public school. But in this

24 instance, there’s the possibility that in Maine or other

25 states, they may attempt to order all citizens to actually

39

1 be vaccinated against COVID-19 to try to fight against it.

2 The question I have for you then is: What are

3 the legal implications of such an order if it were to have

4 been issued?

5 MR. JACQUES: I mean, I can start. I mean, we

6 talked about the Jacobson case from way back in 1904 or

7 so, which was a vaccination case. And then I know more

8 from the school side of things, but there are subsequent

9 cases in the 1920s and 1940s that sort of upheld the

10 government’s right to require vaccinations subject to some

11 exemptions. The one that’s probably most prevalent is the

12 medical exemption. But I think particularly given what

13 the country’s been through, even though we’ve got a very

14 different Supreme Court than we did back the mid 1900s, I

15 think we’re going have a difficult time having a court

16 determine that you can’t have required vaccinations, if

17 and when they become available.

18 MR. SCHUTZ: And I think, you know, under the

19 laws that exist now, the constitutional laws, as long as

20 health authorities can show that there’s potential

21 exposure and risk to society, number one, and number two,

22 that the vaccine is safe to a reasonable extent and as

23 long as the vaccination law, such a law were not

24 discriminatory, it would be constitutional.

25 MODERATOR GAGNON: And, Patrick, I know I saw

40

1 that you have rejoined us now. I’m not sure if you caught

2 my question. But long story short, if the government or

3 private enterprise develops a vaccine and then issues an

4 order via the state government and the (indiscernible),

5 for instance, to have their citizens actually be

6 vaccinated in a very broad order that’s, frankly, just for

7 being a citizen of the State of Maine, is there — is

8 there a legal — is there a legal standing to challenge

9 that and have any sort of order like that rescinded?

10 MR. STRAWBRIDGE: There is standing. I think Sig

11 accurately stated what the case law has previously said,

12 which is generally those can be enforced. There are some

13 interesting questions, because I think there’s a shift in

14 the law underway right now as to whether those who have

15 bona fide religious objections to receiving vaccines might

16 be able to exempt themselves from an otherwise generally

17 applicable law. The rule has been no for a number of

18 years under a decision called Employment Division versus

19 Smith, authored, ironically enough, by Justice Scalia,

20 basically saying that the Free Exercise Clause does not

21 impose any requirement for a general religious exception

22 to an otherwise applicable law. But I do seem to think

23 that law and that area is moving right now. So it’s not

24 entirely clear that at least there might not have to some

25 kind of an opt-out scenario, at least for those who have

41

1 sincere religious objections.

2 MR. SCHUTZ: Matt, I’d just add that, you know,

3 with regard to privacy, you know, you accept this as an

4 infectious disease. It does change the calculus, because

5 there is greater connection between someone else’s health

6 and the rest of the public’s health, because you’ve —

7 because it’s an infectious disease. So the notion of how

8 privacy works in a situation where we all, to some degree,

9 have greater — a greater interest in the health of others

10 in our own community, I think, may move the needle on this

11 a little bit.

12 MR. STRAWBRIDGE: Just ask the residents of

13 Vinalhaven.

14 MR. SCHUTZ: Well, right. Exactly.

15 MODERATOR GAGNON: Moving on. I do want to try

16 to get through as many of these questions as possible, and

17 we’re sort of winding down the amount of time we have

18 available.

19 The question that I’m going to ask you next comes

20 in from Steve Hanley. He’s asking this: There have been

21 persistent rumors that the governor is seriously

22 considering waiving the need for school budget validation

23 referendums this year. This would be an outrageous

24 infringement on the right of voters to control their local

25 property tax destiny.

42

1 Number one, can she actually do that legally

2 within the framework of current law and how everything is

3 structured right now? And question two, I suppose, would

4 be: If she does it anyway, will anyone have the

5 motivation and means to fight it?

6 MR. JACQUES: I think under the governor’s

7 emergency power, she does have the right to suspend the

8 enforcement of any statute, basically, as well as a

9 variety of others. So I think she probably could if she

10 wanted to. I didn’t hear that she was intending to do

11 that. So I really can’t comment on whether that’s, in

12 fact, going to happen. But I know a number of

13 municipalities are still have state elections — have

14 primary elections coming up, and I would assume that those

15 referendum questions — I know in Biddeford, it’s still

16 intending to be on the ballot.

17 MR. STRAWBRIDGE: Yeah, I think it’s worth noting

18 that the more — the more attenuated an action under the

19 emergency powers is from the actual emergency, which

20 again, even under the statute, it’s supposed to be a

21 90-day period before the legislature gets back involved.

22 When you start talking about, you know, not just making,

23 you know, delays to the temporary suspension, but

24 fundamentally changing some of the structural provisions,

25 whether that be, you know, ballot — going to the ballot

43

1 box or how you vote, I think it’s — there’s a greater

2 chance that you could successfully challenge that as

3 outside the scope that was delineated to the governor.

4 Now, I’m not saying it would be successful, and I

5 think that Keith may very well be right, that at least,

6 you know, in the short term, there’s no problem. But, you

7 know, that’s an issue that’s popping up a lot in the

8 election cases. I mean, there are — there are a

9 number — I think there’s over two dozen suits now in

10 various states that either are having primary elections or

11 having the upcoming general election, and there’s, you

12 know, arguments by both parties that they should expand

13 mail-in voting, reduce voter ID requirements.

14 You know, literally the same parties have taken

15 the position that in-person voting should be canceled in

16 some states and has to proceed in others. There’s a lot

17 of scrambling going on, and there is a lot of funding for

18 that type of challenge. And election law is kind of its

19 own area that has some of its own unique considerations,

20 because there are some federal guarantees that come into

21 play there.

22 But I do think that, you know, the more

23 structural changes that one makes and the closer one gets

24 to other constitutional guarantees — we talked about

25 religion. We talked about speech. I saw someone in the

44

1 comments that had a question about the Second Amendment.

2 When you start getting into enumerated rights under the

3 Federal Constitution or voting, different interests are

4 going to come into play; and the chance that a court,

5 either a state court or a federal court, if there’s a

6 federal right involved, might be willing to get in and

7 start drawing boundaries increases.

8 MR. JACQUES: And I think, Matt, that goes back a

9 little bit to a question you had raised a while ago, which

10 was: What are some of the things that we’d like to see

11 the legislature maybe do when all of this stuff is by us?

12 And it strikes me that one of the things that needs to be

13 done is to take a look at the State’s election laws and to

14 start creating a better framework as to what happens when

15 we’re in the type of situation we’re in now. How do these

16 elections go forward? What protection do we have to make

17 sure that the elections, in fact, are legitimate? And how

18 do we address various things in not only elections, but

19 also town meetings and everything else? Because I know

20 having spent a fair amount of time recently talking to

21 municipal officials, they’re sort of struggling as to, you

22 know, the best way to run the elections, what’s being

23 required, what’s not being required. And I think guidance

24 in the future — I don’t think it’s — I don’t think it’s

25 enough to just say, Well, you know, we had elections

45

1 during the Civil War. We had elections during World War

2 II. So we’ll have elections now. I mean, this is a

3 situation where people potentially are scared to go to

4 the — to go vote. And so what sort of things do we need

5 to do to enable people to be able to vote without feeling

6 that they’re endangering their lives?

7 MODERATOR GAGNON: One of the things that has

8 been in the news obviously in Maine the most in the last

9 couple of weeks has been the sort of civil unrest you’re

10 starting to see, not only the protests, but also the

11 defiance of the emergency orders, like with what you saw

12 with Rick Savage and the Sunday River Brewing Company.

13 Is it lawful to imprison or penalize, frankly,

14 someone who defies an emergency order like he was doing?

15 What recourse do people like Rick Savage have in opening

16 their businesses in defiance of this order? Is that

17 something that you might even recommend or caution

18 against? Can the State permanently rescind their

19 licensing status as a result of this? What are these

20 implications?

21 MR. STRAWBRIDGE: I mean, in that particular

22 example, I think that the biggest leverage that the State

23 had was the liquor licensing, which is rather — the State

24 has a lot of power to impose restrictions on your ability

25 to sell alcoholic beverages as opposed to just your

46

1 general ability to open an ordinary business. The more

2 highly regulated the business you are, the more likely it

3 is that there’s going to be some regulatory provision that

4 can independently serve the basis as part of the

5 bargaining of doing business, because you are to comply

6 with all state laws. You are to comply with all

7 duly-posted orders, either from the agency or, in this

8 case, from the governor. And that’s going to be a

9 leverage point that they’re going to have on you, and

10 that’s going to make it more difficult for you to charge.

11 I mean, the thing about civil disobedience is it is

12 disobedience. There’s a law and there’s a rule, and you

13 are violating it; and you are accepting the consequences

14 that come with violating it.

15 Now, the scope of the economic damage to this

16 state is not to be understated, and in particular, a state

17 that depends on tourism and it depends on, you know,

18 people from out of state coming in here heavily during the

19 summertime for a lot of reasons; and that is what puts a

20 lot of money into this economy that in turn helps pay for,

21 you know, all the service providers, all the contractors,

22 all the residents who live here who need other services.

23 You know, Maine, I think, was justifiably identified as

24 one of the most financially vulnerable states. And these

25 people need to be ringing the legislature and the

47

1 governor’s phones off the hook. And I think some unrest

2 and some protest is going to have an effect, because I

3 think the people are ultimately, you know, going to have

4 to — have to enact — I think as we’ve made clear, we

5 think that the democratic process is really the only

6 outlet for challenging a lot of these laws.

7 But the answer is more people may do that, and I

8 think there are some enforcement issues with respect to,

9 you know, particular individuals or (indiscernible due to

10 technical interference) and my guess is that as a matter

11 of law, any responsibile lawyer would advise people and

12 say, Yes, you’re going to risk some liability or even

13 potentially, you know, criminal penalties if you disobey

14 these orders.

15 MR. SCHUTZ: Well, the related issue that was

16 raised in one of the comments is liability. And of

17 course, I actually had one of the last burgers at that

18 restaurant up in Bethel before they closed off the ski

19 areas, and a donut. And so I’m looking forward to going

20 back as soon as possible. But, you know, there’s a

21 liability question. If he’s going to — you know, if

22 you’re going to open your business, and let’s say there is

23 someone sick from Boston that comes up for a burger; and

24 now you’ve got ten people who ate there and spent an hour

25 in the restaurant and potentially are ill, I mean, I

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1 wouldn’t have high hopes that he would be able to save

2 that business under those circumstances. I mean, I’m not

3 sure he could even get insurance for that loss, because

4 all the insurance policies have virus exclusions.

5 So, I mean, it is a very risky proposition

6 both — you know, will the State ultimately be successful

7 in imposing whatever sanctions it imposes, but also from

8 just a liability standpoint. I mean, he’s not going to be

9 handing out waivers to people in line — I didn’t see that

10 on TV — and asking them to agree, well, if you should

11 happen to get ill, you’re not going to sue. I don’t even

12 know that that would be enforceable anyway.

13 MR. JACQUES: And if that person, having

14 disregarded Patrick’s advice and then disregarded Sig’s

15 advice, then came to me and said, Should I open, after

16 repeating what he just heard from Patrick and Sig, one of

17 the things I would drive home is if you’re going do that,

18 you need to do it in a way where you’re meeting the

19 social-distancing criteria that’s out there, if for no

20 other reason than to be able to show Augusta that, in

21 fact, this type of business can do this and re-open and be

22 safe. But if you end up defying the orders and then have

23 mass gatherings with people in close proximity, frankly,

24 you’re just hurting the cause, somewhat, down the line.

25 MODERATOR GAGNON: All right. So we have enough

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1 time for one final question here. So I will get to it

2 really quick here for you.

3 What is the legality of executive orders that

4 compel citizens to take specific actions? And

5 specifically here, what we’re talking about is things like

6 wearing a mask in public. Does this exceed the

7 government’s authority? Can they really tell us to do

8 that kind of thing?

9 I’m not sure if we lost Patrick again, but it

10 might just be you, Sig and Keith.

11 MR. STRAWBRIDGE: No, I’m here again. I have

12 complaints about the availability of reliable broadband

13 service in Maine, but I’m probably not the only one who

14 has that, too.

15 It’s a lot of the same things. I mean, the

16 answer is: What is the level of intrusion? What is the

17 support that the government (indiscernible)? And is it

18 being arbitrary? Or is it deemed a reasonable public

19 health measure? It’s not different than the standard that

20 I think Sig has laid out for vaccination and some of other

21 things. There are a number of things the government

22 actually compels us to do, whether that is, you know,

23 clothe ourselves in a particular way or conform our

24 conduct or our language to a particular, you know, time,

25 place, or manner that can pass constitutional muster. And

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1 a lot of it measures on how consistent it appears to be

2 with accepted scientific basis that is going to be

3 provided in court and how significant the risks are.

4 MR. JACQUES: My sense is that it’s a relatively

5 minimal intrusion on your privacy, and particularly the

6 way it’s being implemented where, you know, if you can’t

7 wear it because of health conditions, then you’re not

8 expected to wear it; and no one’s going to ask you about

9 your health condition because of HIPAA violations. And so

10 it’s really a — in some ways, it’s guidance to the

11 individuals with not much teeth behind it if someone

12 chooses not to wear one.

13 MODERATOR GAGNON: Okay. Great. So that is

14 basically all the time we have here. So I guess before we

15 let everyone go, I don’t know if there’s any parting

16 thoughts that our panelists have about the situation we

17 live in and the legal implications of everything we’ve

18 been talking about; but I did want to give one final

19 opportunity to everybody to weigh in on something if they

20 had some thoughts or questions that we didn’t get to that

21 you think are important for us to talk about really

22 quickly. I would love to hear from you guys if you have

23 any thoughts in that regard.

24 MR. STRAWBRIDGE: I mean, I’ll just say the

25 longer it goes on, the stronger the chances of being able

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1 to legally challenge it are, but that the remedy in this

2 case is with your elected officials; and you have to do

3 everything you can to get through to them to communicate

4 where your interests are being harmed and why you need

5 them reformed. As I said at the beginning, judges are not

6 going to be reluctant to — are going to be reluctant to

7 get involved in this, and I’m not so sure that that’s a

8 bad thing. As a general matter, my view is that judges

9 should probably defer to the legislature — the

10 legislative choices that the people have made more often

11 than they otherwise do right now.

12 MR. SCHUTZ: I’ll say from my standpoint, this is

13 sort of an ounce of prevention is worth a pound of cure

14 situation. If we could have gotten ahead of this problem

15 at the front end, we never would have been faced with the

16 types of extreme limitations on civil liberties that

17 the — we’re now looking at and, you know, realizing that

18 the government in a — well, in a government-declared

19 emergency, whether you agree with the gravity of the

20 emergency or the way it’s described, once it becomes an

21 emergency, the government’s powers are really at their

22 height to impose these kinds of limitations. So it really

23 behoves us all to look at how we can avoid creating

24 circumstances that then lead to these kinds of extremely

25 onerous impositions on our civil liberties and our economy

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1 and so on.

2 MODERATOR GAGNON: Any final thoughts?

3 MR. JACQUES: Yeah, just briefly. I mean, what

4 we’re seeing is everyone’s walking a tightrope between

5 protecting sort of the public health and welfare while

6 trying to get this economy restarted and get this state

7 opened again. And I think that, frustrating as it may be,

8 we have to have some patience, but also try to play a role

9 in defining the process going forward, and in the

10 meantime, trying to keep ourselves and our families safe

11 and healthy. We’ll get through it.

12 MODERATOR GAGNON: All right. Well, that pretty

13 much does it for us. Before I go, I should mention that

14 we do have a raffle winner. By joining us on the program

15 here today, you are automatically entered to win our

16 raffle. And today’s winner is Kristie Miner. So

17 congratulations go out to you. We really appreciate, not

18 only you, Kristie, joining us, but the more than 120

19 people that were on this throughout. So to our panelists,

20 a quick thank you for providing their legal perspective.

21 And I think one of the enduring lessons that we’ve learned

22 from this conversation is that our involvement as citizens

23 in the process from the very beginning, prior to all this

24 happening, and what we’ve had our legislature doing and

25 the laws that we make and the grants of emergency powers

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1 and whatnot are all things that we can change and could

2 have changed five years ago, ten years, and can change in

3 the future. So I would encourage everybody who’s on this

4 call, if you have particular issues with how the

5 government acts and what is actually being done right now,

6 it is an excellent argument for being as involved in this

7 process as possible in an ongoing manner throughout time.

8 So again, thank you very much to our panelists.

9 We really appreciate you joining us here today. And thank

10 you to our audience for listening to us. We look forward

11 to the next event like this coming up next in the future.

12 I appreciate it, everyone. Thanks a lot.

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CERTIFICATE

I, Tammy M. Smith, a Notary Public in and for the

State of Maine, hereby certify that the foregoing is a

correct transcription, to the best of my ability, of my

stenographic notes in the matter of the above-entitled

cause.

IN WITNESS WHEREOF, I subscribe my hand and affix

my seal this 20th day of May, 2020.

Tammy M. Smith,

Notary Public/Court Reporter

My Commission Expires: January 12, 2026