Casey v. Lamont ( 2021 )

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KRISTINE CASEY ET AL. v. GOVERNOR
NED LAMONT
(SC 20494)
Robinson, C. J., and McDonald, D’Auria, Mullins,
Kahn, Ecker and Keller, Js.
Syllabus
Pursuant to statute (§ 28-9 (a)), ‘‘[i]n the event of serious disaster . . . the
Governor may proclaim that a state of civil preparedness emergency
exists . . . .’’
The plaintiffs, the owners of a pub located in Connecticut, sought relief in
connection with the issuance of certain executive orders by the defen-
dant, the governor of the state of Connecticut, amid the COVID-19
pandemic. In response to the pandemic, the governor proclaimed a civil
preparedness emergency pursuant to § 28-9 (a) and issued the challenged
executive orders in an attempt to contain and mitigate the spread of
COVID-19, including orders that limited various activities at bars and
restaurants throughout the state. The plaintiffs closed their pub after
determining that it would not be profitable to operate the pub while
complying with the executive orders. The plaintiffs sought an injunction
precluding the enforcement of the executive orders and a judgment
declaring the orders unconstitutional. The trial court denied the plain-
tiffs’ requests for relief and rendered judgment for the governor. The
plaintiffs appealed to this court upon certification by the Chief Justice
pursuant to statute (§ 52-265a) that a matter of substantial public interest
was involved. Held:
1. The governor did not exceed his statutory authority when he issued the
challenged executive orders: on the basis of the text and legislative
history of both § 28-9 (a) and another related statute (§ 28-1 (2)) that
refers to civil preparedness emergencies under § 28-9 and that defines
the term ‘‘major disaster,’’ as well as a declaration by the president of
the United States that the COVID-19 pandemic was of sufficient severity
and magnitude to be deemed a major disaster under federal law that
embraces a narrower definition of ‘‘major disaster’’ than that set forth
in § 28-1 (2), this court concluded that the COVID-19 pandemic consti-
tuted a ‘‘serious disaster’’ for which the governor could proclaim the
existence of a civil preparedness emergency under § 28-9 (a); moreover,
such a proclamation empowered the governor, pursuant to § 28-9 (b)
(1), to modify or suspend any law or requirement that conflicts with
the efficient and expeditious execution of civil preparedness functions
or the protection of public health, and, pursuant to § 28-9 (b) (7), to
take steps that are reasonably necessary in light of the emergency to
protect the health, safety and welfare of the people of Connecticut,
and all of the challenged executive orders fell within either or both of
those provisions.
2. The plaintiffs could not prevail on their claim that § 28-9 (b) (1) and
(7) was an unconstitutional delegation by the General Assembly of its
legislative powers to the governor, in violation of the separation of
powers provision of the Connecticut constitution: in enacting § 28-9,
the General Assembly set forth the policy for the governor to follow in
the event of a serious disaster and provided standards that both limited
the governor’s authority to act and were sufficient to guide the exercise
of his authority, as the governor could act under § 28-9 (b) (1) only after
he proclaimed a civil preparedness emergency or declared a public
health emergency, his actions under that provision were limited in dura-
tion and to suspending or modifying, rather than repealing, laws, and
only to the extent that they were in conflict with the execution of civil
preparedness functions or were required to protect public health, and
the governor could act under § 28-9 (b) (7) only after he proclaimed a civil
preparedness emergency and only to the extent reasonably necessary
to protect the health, safety and welfare of the people of Connecticut;
moreover, it was reasonable for the legislature to conclude that the
executive branch would be far better suited to respond to a serious
disaster with the speed and flexibility needed to protect the public health
and welfare, as the legislature is not in session continuously and would
not be well positioned to mount a rapid response to a serious disaster,
especially one that develops and evolves quickly and unpredictably, and
thus requires an ongoing and agile response; furthermore, a legislative
committee with statutory authority to disapprove of the governor’s pub-
lic health emergency declaration provided oversight of his actions, and
the legislature had the ability to impose greater oversight or to amend
or repeal § 28-9 to further limit the governor’s authority.
Argued December 11, 2020—officially released March 29, 2021*
Procedural History
Action to enjoin the defendant from enforcing certain
executive orders, and for other relief, brought to the
Superior Court in the judicial district of New Haven
and transferred to the judicial district of Waterbury,
Complex Litigation Docket, where the case was tried
to the court, Bellis, J.; judgment denying the plaintiffs’
request for injunctive and declaratory relief, and the
plaintiff, upon certification by the Chief Justice pursu-
ant to General Statutes § 52-265a that a matter of sub-
stantial public interest was at issue, appealed to this
court. Affirmed.
Jonathan J. Klein, for the appellants (plaintiffs).
Philip Miller, assistant attorney general, with whom,
on the brief, were William Tong, attorney general, Clare
E. Kindall, solicitor general, and Alma Rose Nunley,
assistant attorney general, for the appellee (defendant).
Opinion
McDONALD, J. For more than one year now, the
world has been in the unyielding grip of a highly virulent
infectious disease that, to date, has infected approxi-
mately 127 million people worldwide and has killed
more than 2.7 million individuals. Of those deaths, about
20 percent, or approximately 549,000, have been in the
United States of America. In Connecticut alone, more
than 305,000 people have been infected and more than
7800 have died.1 These numbers, while jarring on their
own, tell but one part of the enormous toll inflicted on
society since the pandemic’s onset. Around the coun-
try—indeed the world—large segments of economic
activity have been severely disrupted, if not fallen into
collapse, millions of people have lost their employment,
many hospitals and other health-care operations have
been overrun by gravely ill and dying patients, and
extraordinary lockdowns ordered by government offi-
cials, in an effort to abate the rate of infection, have
limited the free flow of personal and commercial activ-
ity. As this opinion is issued, it is uncertain when, or
how, the pandemic will end.
The disease that has caused so much death and dam-
age is known as COVID-19. It is a respiratory disease
caused by a virus that is transmitted easily from person
to person and can result in serious illness or death.
According to the Centers for Disease Control and Pre-
vention (CDC), the virus is primarily spread through
respiratory droplets from infected individuals coughing,
sneezing, or talking while in close proximity to other
people. Centers for Disease Control & Prevention, How
COVID-19 Spreads (last updated October 28, 2020),
available at https://www.cdc.gov/coronavirus/2019-ncov/
prevent-getting-sick/how-covid-spreads.html (last vis-
ited March 29, 2021). On January 31, 2020, the United
States Department of Health and Human Services
declared a national public health emergency, effective
January 27, 2020, on the basis of the rising number of
confirmed COVID-19 cases in the United States. United
States Department of Health & Human Services, Press
Release, Secretary Azar Declares Public Health Emer-
gency for United States for 2019 Novel Coronavirus
(January 31, 2020), available at https://www.hhs.gov/
about/news/2020/01/31/secretary-azar-declares-public-
health-emergency-us-2019-novel-coronavirus.html (last
visited March 29, 2021). The CDC explained that COVID-
19 ‘‘represents a tremendous public health threat.’’ Cen-
ters for Disease Control & Prevention, Press Release,
Update on COVID-19 (February 21, 2020), available at
https://www.cdc.gov/media/releases/2020/t0221-cdc-tel-
ebriefing-covid-19.html (last visited March 29, 2021).
With this context in mind, we turn to the matter before
us, which requires this court to consider the extent of
the governor’s authority to issue executive orders dur-
ing the civil preparedness emergency he declared pursu-
ant to General Statutes § 28-9 in response to the COVID-
19 pandemic. In particular, we consider whether the
defendant, Governor Ned Lamont, lawfully issued cer-
tain executive orders that limited various commercial
activities at bars and restaurants throughout the state.
To that end, we must determine whether the COVID-
19 pandemic constitutes a ‘‘serious disaster’’ pursuant
to § 28-9 and whether that statute empowers the gover-
nor to issue the challenged executive orders. Because
we conclude that § 28-9 provides authority for the gov-
ernor to issue the challenged executive orders, we also
consider whether § 28-9 is an unconstitutional delega-
tion of legislative authority to the governor in violation
of the separation of powers provision of the Connecti-
cut constitution. See Conn. Const., art. II. We conclude
that the statute passes constitutional muster.
The pleadings and the record reveal the following
undisputed facts and procedural history. On March 10,
2020, ‘‘[i]n response to the global pandemic of [COVID-
19],’’ Governor Lamont ‘‘declare[d] a public health
emergency and civil preparedness emergency through-
out the [s]tate, pursuant to [General Statutes §§] 19a-
131a and 28-9 . . . .’’ Governor Lamont has renewed
the declaration of both emergencies twice, most recently
on January 26, 2021. The emergencies currently remain
in effect until April 20, 2021. On March 13, 2020, three
days after Governor Lamont’s declaration, President
Donald J. Trump made ‘‘an emergency determination
under [§] 501 (b) of the Robert T. Stafford Disaster
Relief and Emergency Assistance Act, 42 U.S.C. [§§ 5121
–5207 (Stafford Act)].’’ Letter from President Donald J.
Trump to Acting Secretary of the Department of Home-
land Security Chad F. Wolf (March 13, 2020) p. 1. On
March 28, 2020, President Trump determined that,
beginning on January 20, 2020, the impacts of the
COVID-19 pandemic on Connecticut ‘‘are of sufficient
severity and magnitude to warrant a major disaster
declaration under the [Stafford Act] . . . .’’ Federal
Emergency Management Agency, Connecticut, Major
Disaster and Related Determinations, 85 Fed. Reg.
31,542 (May 26, 2020).
Following Governor Lamont’s declaration of the pub-
lic health and civil preparedness emergencies, he prom-
ulgated a series of executive orders in an attempt to
contain and mitigate the spread of COVID-19. Relevant
to this appeal, on March 16, 2020, he issued Executive
Order No. 7D, which provides, among other things, that
‘‘any location licensed for [on premise] consumption
of alcoholic liquor in the [s]tate of Connecticut . . .
shall only serve food or [nonalcoholic] beverages for
[off premise] consumption.’’ Executive Order No. 7D
(March 16, 2020). In response to the rapidly evolving
COVID-19 pandemic, Governor Lamont continued to
promulgate a series of executive orders modifying
Executive Order No. 7D. Specifically, in April, 2020,
Governor Lamont issued Executive Order No. 7X, which
extended to May 20, 2020, Executive Order No. 7D’s
limitations on bars and restaurants. Given that the state
had made some progress in stemming the spread of
COVID-19, in May, 2020, Governor Lamont issued guid-
ance called ‘‘Reopen Connecticut’’ to begin reopening
portions of the state’s economy. The goal of Reopen
Connecticut was to ‘‘[p]roactively protect public health
and speed up the pace of economic, educational, and
community recovery while restoring Connecticut’s qual-
ity of life.’’ N. Lamont, Reopen Connecticut: Sector
Rules for May 20th Reopen (May 18, 2020) (Reopen
Connecticut), available at https://portal.ct.gov/-/media/
DECD/Covid_Business_Recovery/CTReopens_Offices_C4
_V1.pdf (last visited March 29, 2021). In service of that
goal, Governor Lamont issued Executive Order No. 7MM,
which permitted restaurants to serve food outside and
ordered that ‘‘[a]lcoholic liquor may be served only in
connection with outdoor dining . . . .’’ Executive
Order No. 7MM (May 12, 2020). Thereafter, he issued
Executive Order No. 7ZZ, which allowed the resumption
of some indoor dining except that the ban on ‘‘the sale
of alcohol by certain permittees without the sale of
food . . . shall remain in effect and [is] extended
through July 20, 2020.’’ Executive Order No. 7ZZ (June
16, 2020). In July, 2020, and in response to certain
developments related to COVID-19, Governor Lamont
announced that he was suspending phase 3 of the Reopen
Connecticut plan, which was previously scheduled to
start on July 20, 2020.
In compliance with Executive Order No. 7D, and after
determining that it would not be profitable to operate
a takeout business, the plaintiffs, Kristine Casey and
Black Sheep Enterprise, LLC, closed their establish-
ment, Casey’s Irish Pub, on March 16, 2020. Casey is
the permittee of a café liquor permit for the pub, which
has fifteen stools at the bar, two high-top tables, a pool
table, and a maximum capacity of fifty-nine patrons.
The pub does not typically serve hot meals, and approxi-
mately 90 percent of its revenue comes from the sale of
alcohol. The parties agree that, because of the physical
location of the pub, ‘‘[o]utdoor service is not a viable
option . . . because the tables would completely block
the sidewalk, and there would be no protection from
cars approaching to park . . . .’’ The parties also stipu-
late that ‘‘[p]reparing takeout meals and sealed alco-
holic beverages for [off premise] consumption is not a
viable option . . . as Casey knows from her experi-
ence in operating the pub and dealing with her customer
base that, without the pub atmosphere, there would be
insufficient interest from her clientele to justify the
expense of providing such service.’’ The plaintiffs’ pub
remains closed, and the parties stipulate that ‘‘it is not
economically or physically feasible for [the plaintiffs]
to reopen the pub.’’ Since the pub’s shutdown, the plain-
tiffs have continued to pay rent in the amount of $3200
per month and operating expenses totaling approxi-
mately $14,000 per month without any income stream.
In June, 2020, the plaintiffs commenced this action
against Governor Lamont, requesting the court to
declare that he acted beyond his statutory and constitu-
tional authority when he issued Executive Order Nos.
7D, 7G, 7N, 7T, 7X, 7MM and 7ZZ.2 The operative com-
plaint sought a ‘‘temporary and permanent injunction’’
against the enforcement of the challenged executive
orders. The complaint also requested a judgment declar-
ing the executive orders unconstitutional. The parties
filed a stipulation of facts, and, after the filing of briefs,
the case was tried to the court by way of oral argument
and based on the briefs and the parties’ stipulation
of facts.3
Thereafter, the trial court, Bellis, J., issued a memo-
randum of decision, in which it denied the plaintiffs’
request for injunctive and declaratory relief, and the
court rendered judgment for Governor Lamont. The
court reasoned that the COVID-19 pandemic constitutes
a ‘‘serious disaster’’ under § 28-9 (a) and Governor
Lamont’s executive orders were authorized by § 28-9
(b) (1) and (7). The court also concluded that § 28-9 is
not an unconstitutional delegation of legislative author-
ity to the governor because, when the General Assembly
passed § 28-9, ‘‘it set forth a clear legislative policy’’ and
‘‘gave the governor the ability to implement measures
to achieve this goal.’’
The plaintiffs appealed directly to this court pursuant
to General Statutes § 52-265a, and the Chief Justice
subsequently certified that this action involves a matter
of substantial public interest. On appeal, the plaintiffs
do not contend that the restrictions Governor Lamont
imposed on the pub were unreasonable or were not
related to the public health, safety, and welfare of the
people of this state. Rather, they claim that Governor
Lamont exceeded his statutory authority by issuing the
challenged executive orders. The plaintiffs further con-
tend that, even if Governor Lamont’s executive orders
are valid under § 28-9, § 28-9 (b) (1) and (7) is an uncon-
stitutional delegation by the General Assembly of its
legislative powers in violation of the separation of pow-
ers provision of the Connecticut constitution. See Conn.
Const., art. II.
Governor Lamont disagrees and contends that,
because the COVID-19 pandemic is a ‘‘serious disaster,’’
§ 28-9 provides him with statutory authority to limit
the pub’s operation. Governor Lamont further contends
that § 28-9 does not violate the separation of powers
provision of the Connecticut constitution because it
does not infringe on legislative authority and it provides
sufficient standards for implementation.4
Following oral argument, we issued a per curiam
ruling on December 31, 2020, in which we affirmed the
judgment of the trial court, explaining that Governor
Lamont’s actions to date had been constitutional. We
indicated at that time that a full opinion would follow.
This is that opinion.
I
We begin with the plaintiffs’ contention that, by issu-
ing the challenged executive orders, Governor Lamont
exceeded his statutory authority. Whether the governor
has statutory authority to issue the challenged execu-
tive orders during a proclaimed civil preparedness
emergency turns on whether the COVID-19 pandemic
constitutes a ‘‘serious disaster’’ under § 28-9 (a). This
presents a question of statutory interpretation over
which our review is plenary. See, e.g., Gould v. Freedom
of Information Commission, 314 Conn. 802, 810, 104
A.3d 727 (2014). We review § 28-9 in accordance with
General Statutes § 1-2z and our familiar principles of
statutory construction. See, e.g., Sena v. American Med-
ical Response of Connecticut, Inc., 333 Conn. 30, 45–46,
213 A.3d 1110 (2019).
We begin with the text of § 28-9 (a), which provides
in relevant part: ‘‘In the event of serious disaster, enemy
attack, sabotage or other hostile action or in the event
of the imminence thereof, the Governor may proclaim
that a state of civil preparedness emergency exists, in
which event the Governor may personally take direct
operational control of any or all parts of the civil pre-
paredness forces and functions in the state. Any such
proclamation shall be effective upon filing with the
Secretary of the State. . . .’’ Governor Lamont does not
contend that the COVID-19 pandemic has resulted from
an ‘‘enemy attack, sabotage or other hostile action
. . . .’’ General Statutes § 28-9 (a). Rather, the governor
relies on the term ‘‘serious disaster’’ to justify the civil
preparedness emergency proclamation. The plaintiffs
contend that the COVID-19 pandemic is not a ‘‘serious
disaster’’ because the General Assembly did not intend
that term ‘‘to include the contagion of disease.’’ Gover-
nor Lamont contends that, regardless of whether the
statute is plain and unambiguous, the COVID-19 pan-
demic constitutes a ‘‘serious disaster.’’
The term ‘‘serious disaster’’ is not defined in § 28-9 or
in Chapter 517 of the General Statutes. The term ‘‘major
disaster,’’ however, is defined in the definitional provi-
sion of Chapter 517.5 Specifically, General Statutes § 28-
1 (2) defines ‘‘major disaster’’ as ‘‘any catastrophe
including, but not limited to, any hurricane, tornado,
storm, high water, wind-driven water, tidal wave, tsu-
nami, earthquake, volcanic eruption, landslide, mud-
slide, snowstorm or drought, or, regardless of cause,
any fire, flood, explosion, or man-made disaster in any
part of this state that, (A) in the determination of the
President, causes damage of sufficient severity and
magnitude to warrant major disaster assistance under
the [Stafford Act], as amended from time to time, to
supplement the efforts and available resources of this
state, local governments within the state, and disaster
relief organizations in alleviating the damage, loss, hard-
ship, or suffering caused by such catastrophe, or (B)
in the determination of the Governor, requires the decla-
ration of a civil preparedness emergency pursuant to
section 28-9.’’ (Emphasis added.)
Because the term ‘‘catastrophe’’ is not defined in § 28-
1, we look to its common dictionary definition. See,
e.g., Studer v. Studer, 320 Conn. 483, 488, 131 A.3d 240(2016); see also General Statutes § 1-1 (a). ‘‘Catastro-
phe’’ is often defined as ‘‘a momentous tragic usu[ally]
sudden event marked by effects ranging from extreme
misfortune to utter overthrow or ruin . . . .’’ Webster’s
Third New International Dictionary (1961) p. 351; accord
Merriam-Webster’s Collegiate Dictionary (11th Ed. 2003)
p. 194. The COVID-19 pandemic has caused vast disrup-
tion to everyday life, and it has had a devastating impact
on our economy. K. Phaneuf, ‘‘CT Economy Will Strug-
gle Until at Least 2030 To Recover from COVID, UConn
Report Warns,’’ CT Mirror, October 23, 2020, available
at https://ctmirror.org/2020/10/23/ct-economy-will-struggle
-until-at-least-2030-to-recover-from-covid-uconn-report
-warns/ (last visited March 29, 2021). Most tragically,
the United States has now recorded more COVID-19
deaths than the total number of Americans killed during
World Wars I and II combined. See Congressional
Research Service, American War and Military Opera-
tions Casualties: Lists and Statistics (Updated July 29,
2020) p. 2, available at https://crsreports.congress.gov/
product/pdf/RL/RL32492 (last visited March 29, 2021).
Thus, by any reasonable measure, the COVID-19 pan-
demic certainly fits the dictionary definition of catas-
trophe.
The plaintiffs note, however, that the enumerated
list that follows the term ‘‘catastrophe’’ in § 28-1 (2) is
limited to ‘‘weather conditions, seismic activity, fire,
explosion and man-made conditions . . . .’’ As a result,
the plaintiffs argue that there is no language in § 28-1
(2) that indicates any legislative ‘‘intent to include the
contagion of disease.’’ The plaintiffs argue, albeit implic-
itly, that we should apply the statutory interpretation
rule of ejusdem generis, which provides that, ‘‘when a
general word or phrase follows a list of specifics, the
general word or phrase will be interpreted to include
only items of the same class as those listed.’’ (Internal
quotation marks omitted.) State v. Terwilliger, 314
Conn. 618, 658, 104 A.3d 638 (2014).
Although it is true that the listed examples of catastro-
phes do not include the contagion of disease, the plain-
tiffs’ argument fails to consider that the list is preceded
by the phrase ‘‘including, but not limited to . . . .’’
(Emphasis added.) General Statutes § 28-1 (2). By
including this phrase, the legislature evinced its intent
that a ‘‘major disaster’’ not be limited in scope to the
enumerated events, as the plaintiffs contend.6 See
United States v. West, 671 F.3d 1195, 1200–1201 (10th
Cir. 2012) (citing cases holding that doctrine of ejusdem
generis is inapplicable when statutory enumeration is
preceded by phrase ‘‘including, but not limited to’’); see
also Tomick v. United Parcel Service, Inc., 324 Conn.
470, 479, 153 A.3d 615 (2016) (‘‘[r]eading the phrase
‘including but not limited to,’ as expansive’’); Lusa v.
Grunberg, 101 Conn. App. 739, 756, 923 A.2d 795 (2007)
(‘‘the phrase [including but not limited to] convey[s] a
clear intention that the items listed in the definition do
not constitute an exhaustive or exclusive list’’ (internal
quotation marks omitted)). Indeed, as Governor Lamont
contends, an expansive reading is warranted in this
context given that the General Assembly instructed him
to exercise the powers delegated to him under § 28-9
broadly for ‘‘the protection of the public health’’; Gen-
eral Statutes § 28-9 (b) (1); and ‘‘to protect the health,
safety and welfare of the people of the state . . . .’’
General Statutes § 28-9 (b) (7). A narrow interpretation
of the circumstances under which the governor would
have authority to proclaim a civil preparedness emer-
gency, as the plaintiffs contend, would frustrate this
legislative intent.
Moreover, it would be absurd for the statutory scheme
to be interpreted such that the governor could declare
a civil preparedness emergency for an event such as a
snowstorm, but not for the worst pandemic that has
impacted the state in more than one century. We decline
to construe the meaning of ‘‘major disaster’’ in such a
manner. See, e.g., Goldstar Medical Services, Inc. v.
Dept. of Social Services, 288 Conn. 790, 803, 955 A.2d
15 (2008) (‘‘[i]n construing a statute, common sense
must be used and courts must assume that a reasonable
and rational result was intended’’ (internal quotation
marks omitted)).
To the extent the meaning of ‘‘major disaster’’ is ambig-
uous given the tension between the enumerated list of
catastrophes and the legislature’s use of the phrase
‘‘including, but not limited to,’’ we look to extratextual
sources to gain further insight into whether the legisla-
ture intended that a global pandemic could constitute
a major disaster. The legislative history of both §§ 28-1
(2) and 28-9 provides further support for the conclusion
that the General Assembly did not intend the term ‘‘major
disaster’’ to be limited only to catastrophes caused by
weather conditions, seismic activity, fire, explosion and
man-made conditions, as the plaintiffs contend. Under
earlier versions of § 28-9, the governor was authorized
to proclaim a civil preparedness emergency ‘‘[i]n the
event of serious natural disaster, enemy attack, sabo-
tage or other hostile action or in the event of the immi-
nence thereof . . . .’’ General Statutes (1958 Rev.) § 28-
9; see also General Statutes (1955 Supp.) § 1913d (add-
ing ‘‘serious natural disaster’’ to list of events). At that
time, Chapter 517 did not contain a definition of ‘‘disas-
ter’’ or ‘‘serious national disaster.’’ In 1975, however,
the General Assembly inserted a definition of ‘‘disaster’’
into § 28-1. See Public Acts 1975, No. 75-643, § 1 (P.A.
75-643), codified at General Statutes (Rev. to 1977) § 28-
1 (b). It provided in relevant part: ‘‘ ‘Disaster’ means
occurrence or imminent threat of widespread or severe
damage, injury or loss of life or property resulting from
any natural or manmade cause, including but not limited
to, fire, flood, earthquake, wind, storm, wave action,
oil spill or other water contamination . . . epidemic,
air contamination, blight, drought, infestation, explo-
sion, riot or hostile military or paramilitary action.’’
(Emphasis added.) P.A. 75-643, § 1. Accordingly, at least
as early as 1975, the General Assembly clearly antici-
pated that an epidemic could constitute a ‘‘disaster.’’
Since 1975, the General Assembly has amended the
definitions in § 28-1 on several occasions in order to
align state law with the federal Stafford Act. See Sena
v. American Medical Response of Connecticut, Inc.,
supra, 333 Conn. 50 n.13. Specifically, in 1979, the Gen-
eral Assembly removed the definition of ‘‘disaster’’ from
§ 28-1 and added the definition of ‘‘major disaster’’ to
better align state and federal law. Public Acts 1979, No.
79-417, § 1 (P.A. 79-417), codified at General Statutes
(Rev. to 1981) § 28-1 (b); see 22 H.R. Proc., Pt. 5, 1979
Sess., p. 1648 (‘‘The intent of this [b]ill is to align the
[s]tate laws with the [f]ederal laws. . . . Further, [the
bill] inserts two new definitions for major disasters
and emergency, while repealing the old definition for
disaster. Again, this is done to align [f]ederal and [s]tate
legislation.’’). Public Act No. 79-417 defined ‘‘major
disaster’’ in relevant part as ‘‘any hurricane, storm,
flood, high water, wind driven water, tidal wave, tsu-
nami, earthquake, volcanic eruption, landslide, mud-
slide, snowstorm, drought, fire, explosion, or other
catastrophe in any part of this state which, in the deter-
mination of the president, causes damage of sufficient
severity and magnitude to warrant major disaster assis-
tance under the Federal Disaster Relief Act of 1974
. . . .’’ P.A. 79-417, § 1. This definition was nearly identi-
cal to the federal definition of ‘‘major disaster’’ in the
federal Disaster Relief Act of 1974. See Disaster Relief
Act of 1974, Pub. L. No. 93-288, § 102, 88 Stat. 143,
144, codified at 42 U.S.C. § 5122 (2) (Supp. IV 1974).
Although the definition of ‘‘major disaster’’ did not list
epidemic or pandemic, there is nothing in the legislative
history to indicate that the General Assembly intended
that an epidemic or pandemic of sufficient severity
could not constitute a ‘‘major disaster,’’ when, just four
years earlier, it evinced its intent that it could constitute
a ‘‘disaster.’’ The changes to the definition were merely
intended to align state and federal law.7
The plaintiffs’ contention that the term ‘‘major disas-
ter’’ is limited to weather conditions, seismic activity,
fire, explosion and man-made conditions is further
belied by the legislature’s changes to the definition of
‘‘major disaster’’ in Number 06-15 of the 2006 Public
Acts (P.A. 06-15). In 1988, Congress amended the Disas-
ter Relief Act of 1974 and changed the definition of
‘‘major disaster’’ to ‘‘any natural catastrophe (including
any hurricane, tornado, storm, high water, winddriven
water, tidal wave, tsunami, earthquake, volcanic erup-
tion, landslide, mudslide, snowstorm, or drought)
. . . .’’ (Emphasis added.) The Disaster Relief and
Emergency Assistance Amendments of 1988, Pub. L.
No. 100-707, § 103, 102 Stat. 4689, 4690, codified at 42
U.S.C. § 5122 (2) (1988). Rather than adopting the new
federal definition, as the General Assembly had pre-
viously done, in P.A. 06-15, it enacted a broader defini-
tion of ‘‘major disaster’’ by omitting the word ‘‘natural’’
and adding the phrases ‘‘including, but not limited to’’
and ‘‘manmade disaster . . . .’’ P.A. 06-15, § 1, codified
at General Statutes (Rev. to 2007) § 28-1 (2). Thus, the
current statutory definition of ‘‘major disaster’’ under
Connecticut law is broader than the federal definition,
which is limited to ‘‘natural catastrophe[s]’’; 42 U.S.C.
§ 5122 (2) (2018); and encompasses a wider category
of catastrophes beyond those listed in the federal defini-
tion. See General Statutes § 28-1 (2). Significantly, how-
ever, although the federal definition of ‘‘major disaster’’
is narrower than the state definition, President Trump
concluded that the impacts of the COVID-19 pandemic
on Connecticut were ‘‘of sufficient severity and magni-
tude to warrant a major disaster declaration under
the [Stafford Act] . . . .’’ (Emphasis added.) Federal
Emergency Management Agency, supra, 85 Fed. Reg.
31,542. It would be illogical to conclude that the effects
of the COVID-19 pandemic in this state were of suffi-
cient severity to constitute a ‘‘major disaster’’ under the
narrower federal definition of ‘‘major disaster’’ but not
sufficient to satisfy the broader state definition of the
same term.8 We decline to construe the statute in such
a manner. Accordingly, we conclude that the COVID-
19 pandemic constitutes a ‘‘major disaster,’’ as that term
is defined in § 28-1 (2).
Logically, it would seem that the meaning of the term
‘‘major disaster’’ set forth in § 28-1 (2) is substantially
similar to the term ‘‘serious disaster’’ in § 28-9 (a). See
Webster’s Third New International Dictionary, supra,
pp. 1363, 2073 (defining ‘‘major’’ as ‘‘involving grave
risk: serious’’ and defining ‘‘serious’’ as ‘‘grave in dispo-
sition, appearance, or manner’’). As this court has often
explained, however, ‘‘we assume that the legislature
has a different intent when it uses different terms in
the same statutory scheme.’’ Southern New England
Telephone Co. v. Cashman, 283 Conn. 644, 662, 931
A.2d 142 (2007) (Katz, J., concurring). Thus, we must
determine whether a major disaster also constitutes a
serious disaster. This question is quickly resolved based
on a review of the statutory scheme. Section 28-1 (2)
provides that a ‘‘major disaster’’ includes ‘‘any catastro-
phe’’ that ‘‘(B) in the determination of the Governor,
requires the declaration of a civil preparedness emer-
gency pursuant to section 28-9.’’ The General Assem-
bly’s reference to a civil preparedness emergency under
§ 28-9 in the definition of ‘‘major disaster’’ set forth in
§ 28-1 (2) makes clear that it intended that any event
that constitutes a ‘‘catastrophe’’ under § 28-1 (2) also
constitutes a ‘‘serious disaster’’ if the governor declares
a civil preparedness emergency under § 28-9. Put differ-
ently, if an event constitutes a ‘‘catastrophe’’ under § 28-
1 (2), and the governor determines that the proclama-
tion of a civil preparedness emergency under § 28-9 is
required to address it, then the ‘‘catastrophe’’ necessar-
ily is both a ‘‘major disaster’’ and a ‘‘serious disaster.’’9
Because, as we have explained, the COVID-19 pandemic
constitutes a ‘‘catastrophe,’’ and Governor Lamont has
declared a civil preparedness emergency under § 28-9,
we conclude that the COVID-19 pandemic constitutes
a ‘‘serious disaster’’ under § 28-9 (a).
Having concluded that the COVID-19 pandemic con-
stitutes a serious disaster and, therefore, that Governor
Lamont was statutorily authorized to proclaim a civil
preparedness emergency, we must determine whether
such proclamation empowered him to issue the chal-
lenged executive orders. Relevant to this appeal, sub-
section (b) of § 28-9 provides in relevant part that, ‘‘upon
[a civil preparedness emergency] proclamation, the fol-
lowing provisions of this section and the provisions of
section 28-11 shall immediately become effective and
shall continue in effect until the Governor proclaims
the end of the civil preparedness emergency:
‘‘(1) Following the Governor’s proclamation of a civil
preparedness emergency pursuant to subsection (a) of
this section or declaration of a public health emergency
pursuant to section 19a-131a, the Governor may modify
or suspend in whole or in part, by order as hereinafter
provided, any statute, regulation or requirement or part
thereof whenever the Governor finds such statute, regu-
lation or requirement, or part thereof, is in conflict
with the efficient and expeditious execution of civil
preparedness functions or the protection of the public
health. The Governor shall specify in such order the
reason or reasons therefor and any statute, regulation or
requirement or part thereof to be modified or suspended
and the period, not exceeding six months unless sooner
revoked, during which such order shall be enforced.
. . .
***
‘‘(7) The Governor may take such other steps as are
reasonably necessary in the light of the emergency to
protect the health, safety and welfare of the people of
the state, to prevent or minimize loss or destruction of
property and to minimize the effects of hostile action
. . . .’’
In short, following the proclamation of a civil pre-
paredness emergency pursuant to § 28-9 (a), subsection
(b) (1) empowers the governor to modify or suspend
any statute, regulation or requirement that conflicts
with the efficient and expeditious execution of civil
preparedness functions or the protection of the public
health. Subsection (b) (7) additionally empowers the
governor to take other steps that are reasonably neces-
sary in light of the emergency to protect the health,
safety, and welfare of the people of the state. All of the
challenged executive orders fall squarely within either
or both of these provisions.
Executive Order Nos. 7D and 7G, which closed bars
and restaurants to all on premise service of food and
beverages, were promulgated as part of a series of com-
munity mitigation strategies that were designed to
encourage social distancing and protect public health
and safety and to ‘‘increase containment of the virus
and to slow transmission of the virus . . . .’’ Executive
Order No. 7G (March 19, 2020). As the trial court noted,
it is ‘‘now common knowledge that COVID-19 is spread
by people who are in close physical contact with each
other, and it is also well known that people who are
drinking alcohol in bars tend to gather in close proxim-
ity in order to socialize.’’ Other executive orders simi-
larly provided logistical guidance to bars and restaurants
in an effort to limit the number of people within these
establishments or otherwise effectuate Executive Order
No. 7D. See Executive Order No. 7N (March 26, 2020)
(directing businesses that remained open to serve food
and drink for off premise consumption to ‘‘limit
entrance of customers into their locations to the mini-
mum extent necessary to pick up and/or pay for orders,
use touchless payment systems, and require remote
ordering and payment’’); Executive Order No. 7T (April
2, 2020) (expanding list of sealed containers of alcohol
that liquor permit holders could sell under conditions
set forth in Executive Order No. 7G); Executive Order
No. 7X (April 10, 2020) (extending Executive Order No.
7D’s limitations on bars and restaurants through May
20, 2020). Governor Lamont noted the importance of
each executive order to ‘‘reduc[ing] [the] spread of
COVID-19,’’ ‘‘increas[ing] containment of the virus,’’ and
‘‘slow[ing] transmission of the virus . . . .’’ Executive
Order No. 7G (March 19, 2020); accord Executive Order
No. 7T (April 2, 2020). These executive orders fell within
Governor Lamont’s authority under § 28-9 (b) (7) to
‘‘take such other steps as are reasonably necessary in
the light of the emergency to protect the health, safety
and welfare of the people of the state . . . .’’ Indeed,
the plaintiffs do not contend that the restrictions Gover-
nor Lamont imposed on the pub were unreasonable or
were not related to the public health, safety, and welfare
of the people of this state.
Finally, Governor Lamont issued Executive Order
Nos. 7MM and 7ZZ as the state began making progress
in stemming the spread of COVID-19 in order to ‘‘[p]ro-
actively protect public health and speed up the pace of
economic, educational, and community recovery while
resorting Connecticut’s quality of life.’’ Reopen Con-
necticut, supra. Executive Order No. 7MM permitted
restaurants to serve food outside and ordered that
‘‘[a]lcoholic liquor . . . be served only in connection
with outdoor dining . . . .’’ Executive Order No. 7MM
(May 12, 2020). Governor Lamont explained in the exec-
utive order that, when on premise dining was first per-
mitted, it was limited to outdoor service because
‘‘public health experts ha[d] determined that the risk
of transmission of COVID-19 [was] reduced in outdoor
areas, including where there is more sunlight, greater
air movement, and greater space to maintain distance
between people . . . .’’ Id. Thereafter, Governor
Lamont issued Executive Order No. 7ZZ, which allowed
the resumption of indoor dining except that the ban on
‘‘the sale of alcohol by certain permittees without the
sale of food . . . [was to] remain in effect and [was]
extended through July 20, 2020.’’ Executive Order No.
7ZZ (June 16, 2020). As with his earlier executive orders
restricting activities at bars and restaurants, Executive
Order Nos. 7MM and 7ZZ also fell within Governor
Lamont’s authority under § 28-9 (b) (7) to ‘‘take such
other steps as are reasonably necessary in the light of
the emergency to protect the health, safety and welfare
of the people of the state . . . .’’ In each of the chal-
lenged executive orders, Governor Lamont explained
the public health rationale that required the action in
order to protect the health, safety, and welfare of the
people of this state.
Moreover, Executive Order Nos. 7MM and 7ZZ are
also authorized by the governor’s authority under § 28-
9 (b) (1) to modify or suspend a statute if it conflicts
with ‘‘the efficient and expeditious execution of civil
preparedness functions or the protection of the public
health.’’ Executive Order No. 7MM specifically provides
that ‘‘[t]itle 30 of the . . . General Statutes, including
[§§] 30-22 (a) and 30-22a (a) . . . are modified to the
extent they conflict with, or create additional require-
ments [with respect to], the sale of alcoholic liquor
. . . .’’ Executive Order No. 7MM (May 12, 2020). Gen-
eral Statutes § 30-22a sets forth the terms of café liquor
permits for the sale of alcoholic liquor. Executive Order
No. 7MM plainly modified § 30-22a (a), directing that,
if a café intends to resume sales of alcoholic liquor for
on premise consumption, such liquor may be consumed
only outdoors and can be sold only in conjunction with
the sale of food. Executive Order No. 7ZZ expanded on
this modification of § 30-22a (a) by also requiring that
the sale of food be accompanied by the sale of alcoholic
liquor upon the resumption of indoor dining. Executive
Order No. 7ZZ also explicitly provides that ‘‘[§] 28-9 (b)
. . . authorizes the modification or suspension . . . of
any statute . . . that conflicts with the efficient and
expeditious execution of civil preparedness functions
or the protection of public health . . . .’’ Executive
Order No. 7ZZ (June 16, 2020). Both executive orders
are thus also supported by the governor’s authority
under § 28-9 (b) (1), which authorizes the governor to
modify or suspend any statute, regulation or require-
ment, if it conflicts with the efficient and expeditious
execution of civil preparedness functions or the protec-
tion of the public health. Accordingly, we conclude that
Governor Lamont did not exceed his statutory authority
when he issued the challenged executive orders in an
effort to contain the spread of COVID-19.
II
We now consider the plaintiffs’ contention that § 28-
9 (b) (1) and (7) is an unconstitutional delegation by
the General Assembly of its legislative powers to the
governor, in violation of the separation of power provi-
sion of the Connecticut constitution. See Conn. Const.,
art. II.
We begin with the relevant legal principles. A chal-
lenge to ‘‘[t]he constitutionality of a statute presents a
question of law over which our review is plenary. . . .
It [also] is well established that a validly enacted statute
carries with it a strong presumption of constitutionality,
[and that] those who challenge its constitutionality must
sustain the heavy burden of proving its unconstitution-
ality beyond a reasonable doubt. . . . The court will
indulge in every presumption in favor of the statute’s
constitutionality . . . . Therefore, [w]hen a question
of constitutionality is raised, courts must approach it
with caution, examine it with care, and sustain the
legislation unless its invalidity is clear.’’ (Internal quota-
tion marks omitted.) Keane v. Fischetti, 300 Conn. 395,
402, 13 A.3d 1089 (2011).
‘‘The [c]onstitution of this state provides for the sepa-
ration of the governmental functions into three basic
departments, legislative, executive and judicial, and it
is inherent in this separation, since the law-making func-
tion is vested exclusively in the legislative department,
that the [l]egislature cannot delegate the law-making
power to any other department or agency.’’ (Internal
quotation marks omitted.) University of Connecticut
Chapter, AAUP v. Governor, 200 Conn. 386, 394, 512
A.2d 152 (1986). We have explained that ‘‘[t]he primary
purpose of [the separation of powers] doctrine is to
prevent commingling of different powers of government
in the same hands. . . . The constitution achieves this
purpose by prescribing limitations and duties for each
branch that are essential to each branch’s independence
and performance of assigned powers. . . . It is axiom-
atic that no branch of government organized under a
constitution may exercise any power that is not explic-
itly bestowed by that constitution or that is not essential
to the exercise thereof. . . . [Thus] [t]he separation of
powers doctrine serves a dual function: it limits the
exercise of power within each branch, yet ensures the
independent exercise of that power.’’ (Internal quota-
tion marks omitted.) Persels & Associates, LLC v. Bank-
ing Commissioner, 318 Conn. 652, 668–69, 122 A.3d
592 (2015).
Unlike the separation of powers doctrine that has
developed under the federal constitution, ‘‘the historical
evolution of Connecticut’s governmental system [has]
established a ‘tradition of harmony’ among the separate
branches of government . . . .’’ State v. McCleese, 333
Conn. 378, 419, 215 A.3d 1154 (2019). ‘‘Recognizing that
executive, legislative and judicial powers frequently
overlap, we have consistently held that the doctrine of
the separation of powers cannot be applied rigidly.’’
Bartholomew v. Schweizer, 217 Conn. 671, 676, 587 A.2d
1014 (1991). As we have recognized, ‘‘the great functions
of government are not divided in any such way that all
acts of the nature of the function of one department
can never be exercised by another department; such a
division is impracticable, and if carried out would result
in the paralysis of government. Executive, legislative
and judicial powers . . . of necessity overlap each
other, and cover many acts which are in their nature
common to more than one department.’’ (Internal quo-
tation marks omitted.) Seymour v. Elections Enforce-
ment Commission, 255 Conn. 78, 107, 762 A.2d 880(2000), cert. denied, 533 U.S. 951, 121 S. Ct. 2594, 150
L. Ed. 2d 752 (2001). For example, the General Assembly
does not have exclusive responsibility for legislating.
Rather, the legislature and the governor work together
to pass legislation. See, e.g., Conn. Const., art. IV, § 15
(‘‘Each bill which shall have passed both houses of the
general assembly shall be presented to the governor.
. . . If the governor shall approve a bill, he shall sign
and transmit it to the secretary of the state, but if he
shall disapprove, he shall transmit it to the secretary
with his objections, and the secretary shall thereupon
return the bill with the governor’s objections to the
house in which it originated.’’).
A statute will be held unconstitutional on the ground
that it violates the separation of powers only if it ‘‘(1)
confers on one branch of government the duties which
belong exclusively to another branch . . . or (2) if it
confers the duties of one branch of government on
another branch which duties significantly interfere with
the orderly performance of the latter’s essential func-
tions.’’ (Citation omitted.) University of Connecticut
Chapter, AAUP v. Governor, supra, 200 Conn. 394–95.
Applying these standards to § 28-9 (b) (1) and (7), we
conclude that the plaintiffs cannot meet their heavy
burden of establishing that the statute is a violation of
the separation of powers provision of article second of
the Connecticut constitution on the basis that it imper-
missibly delegates legislative authority to the governor.
Section 28-9 sets forth the General Assembly’s policy
that the state must be able to mount a rapid and agile
response to a ‘‘serious disaster,’’ and the executive
branch, namely, the governor, is most capable of car-
rying out that response. Significantly, although the ‘‘law-
making power is in the legislative branch of our govern-
ment and cannot constitutionally be delegated . . . the
General Assembly may carry out its legislative policies
within the police power of the state by delegating to
an administrative agency the power to fill in the details.’’
(Citation omitted; internal quotation marks omitted.)
New Milford v. SCA Services of Connecticut, Inc., 174
Conn. 146, 149, 384 A.2d 337 (1977). Put differently, the
General Assembly has ‘‘the right to determine in the
first instance what is the nature and extent of the danger
to the public health, safety, morals and welfare and
what are the measures best calculated to meet that
threat.’’ Buxton v. Ullman, 147 Conn. 48, 55, 156 A.2d
508 (1959), appeal dismissed sub nom. Poe v. Ullman,
367 U.S. 497, 81 S. Ct. 1752, 6 L. Ed. 2d 989 (1961). Once
the General Assembly has made that determination, it
may carry out that policy by delegating to the executive
branch the power to ‘‘fill in the details’’ in order to
effectuate that policy.10 ‘‘In order to render admissible
such delegation of legislative power, however, it is nec-
essary that the statute declare a legislative policy, estab-
lish primary standards for carrying it out, or lay down
an intelligible principle to which the administrative offi-
cer or body must conform, with a proper regard for the
protection of the public interests and with such degree
of certainty as the nature of the case permits . . . .’’
(Internal quotation marks omitted.) Hogan v. Dept. of
Children & Families, 290 Conn. 545, 572, 964 A.2d
1213 (2009). As the United States Supreme Court has
explained, ‘‘[s]o long as Congress shall lay down by
legislative act an intelligible principle to which the per-
son or body authorized to [exercise the delegated
authority] is directed to conform, such legislative action
is not a forbidden delegation of legislative power.’’
(Internal quotation marks omitted.) Mistretta v. United
States, 488 U.S. 361, 372, 109 S. Ct. 647, 102 L. Ed. 2d
714 (1989); see also Youngstown Sheet & Tube Co. v.
Sawyer, 343 U.S. 579, 635, 72 S. Ct. 863, 96 L. Ed. 1153(1952) (Jackson, J., concurring in the judgment and
opinion of the court) (‘‘[w]hen the [p]resident acts pur-
suant to an express or implied authorization of Con-
gress, his authority is at its maximum, for it includes
all that he possesses in his own right plus all that Con-
gress can delegate’’). That is, ‘‘[t]he constitutional ques-
tion is whether Congress has supplied an intelligible
principle to guide the delegee’s use of discretion.’’
Gundy v. United States, U.S. , 139 S. Ct. 2116,
2123, 204 L. Ed. 2d 522 (2019) (plurality opinion). ‘‘[T]he
answer requires construing the challenged statute to
figure out what task it delegates and what instructions
it provides.’’ Id.In enacting § 28-9, the General Assembly set forth the
policy for the governor to follow in the event of a serious
disaster. Specifically, through § 28-9 (b) (1), the General
Assembly’s policy directs that, upon the proclamation
of a civil preparedness emergency, or upon the declara-
tion of a public health emergency under § 19a-131a,
the governor may ‘‘modify or suspend . . . any statute,
regulation or requirement or part thereof whenever the
Governor finds such statute, regulation or requirement,
or part thereof, is in conflict with the efficient and
expeditious execution of civil preparedness functions
or the protection of the public health.’’ (Emphasis
added.) Section 28-9 (b) (1) further requires the gover-
nor to specify the reasons for suspending or modifying
the statute, regulation or requirement and ‘‘the period,
not exceeding six months unless sooner revoked, dur-
ing which such order shall be enforced.’’ (Emphasis
added.) The legislature set forth the standards that limit
the governor’s authority to act under § 28-9 (b) (1) in
three primary ways. First, the governor may act pursu-
ant to subsection (b) (1) only after the governor has
proclaimed a civil preparedness emergency or declared
a public health emergency. Second, the governor’s
actions are limited to modifying or suspending—not
repealing—statutes or other regulations only to the
extent that they are in conflict with the execution of
civil preparedness functions or are required to protect
the public health, and the governor is required to specify
the reasons for the modification or suspension. Finally,
the governor’s actions have temporal limitations,
namely, the period of time the modification or suspen-
sion may be enforced is limited to six months.11 There-
fore, any actions the governor takes under subsection
(b) (1) are temporary, that is, he cannot modify or sus-
pend any statutes or regulations permanently.
Section 28-9 (b) (7) similarly makes clear that the
governor may take other steps to address the serious
disaster, only if they ‘‘are reasonably necessary in the
light of the emergency to protect the health, safety and
welfare of the people of the state, to prevent or minimize
loss or destruction of property and to minimize the
effects of hostile action.’’ In other words, the governor
may act under subsection (b) (7) only after he has
proclaimed a civil preparedness emergency, and his
actions are limited to those that are reasonably neces-
sary to protect the health, safety, and welfare of the
people of this state. Moreover, the governor may act
only to the extent that the health, safety, and welfare
of the people are implicated by this particular serious
disaster. The governor would not, for example, be able
to issue an executive order forbidding restaurants from
selling unhealthy foods during the COVID-19 pandemic.
Although eating healthy foods is undoubtedly related
to the health and welfare of the people of this state,
such an action is not reasonably necessary to address
the current pandemic. Likewise, should a hurricane of
sufficient severity require the governor to proclaim a
civil preparedness emergency, mandating that Connect-
icut citizens wear masks would not be a proper action
under subsection (b) (7) merely because it might have
the incidental health benefit of reducing the spread of
the common cold. Rather, the governor’s actions under
subsection (b) (7) must be reasonably necessary to
address the specific serious disaster that warranted the
civil preparedness emergency proclamation.
Our case law supports the conclusion that § 28-9 (b)
(1) and (7) is not an unconstitutional delegation of
legislative authority. In University of Connecticut
Chapter, AAUP v. Governor, supra, 200 Conn. 386, this
court upheld the constitutionality of General Statutes
(Rev. to 1985) § 4-85 (b), which authorized the governor
to ‘‘reduce budgetary allotments by up to 5 percent
under certain specified circumstances.’’ Id., 387. The
plaintiffs argued that the statute violated the separation
of powers provision because it attempted to delegate
a strictly legislative function, namely, budgeting. Id.,
393. This court rejected that argument. We explained
that, rather than interfering with a legislative function,
§ 4-85 (b) enabled the governor ‘‘to supervise the execu-
tion of the budget.’’ Id., 396. We explained that this role
was particularly suited to the executive branch, which is
‘‘most capable of having detailed and contemporaneous
knowledge regarding finances. Under the constitutional
separation of powers, the governor uses that knowledge
in making such spending decisions and to see that the
laws are faithfully executed.’’ Id., 397. Here, the General
Assembly similarly expressed its policy that the gover-
nor is most appropriately suited to use the expertise
of the executive branch—particularly in this case, the
Department of Public Health—to respond to a poten-
tially, rapidly evolving serious disaster and to take the
most appropriate steps to safeguard the people of this
state. In University of Connecticut Chapter, AAUP, we
also rejected the plaintiffs’ argument that the standards
‘‘ ‘deems necessary’ ’’ and ‘‘ ‘a change of circum-
stances’ ’’ did not provide sufficient standards to the
governor. Id., 398. We noted that requiring more specific
standards ‘‘would hamper the flexibility needed for the
governor to monitor and administer expenditures and
to supervise the execution of the budget.’’ Id., 399. The
standards set forth in subsection (b) (1) and (7) simi-
larly provide sufficient standards to guide the gover-
nor’s exercise of his authority.
By contrast, in State v. Stoddard, 126 Conn. 623, 633–
34, 13 A.2d 586 (1940), this court reversed a defendant’s
criminal conviction and struck down a statute that
authorized the milk administrator to set the minimum
price for milk. The only guidance the General Assembly
provided to the administrator in setting the price was
to ‘‘take into consideration the type of container used
and other cost factors [that] should influence the deter-
mination of such prices.’’ (Internal quotation marks
omitted.) Id., 625. This court concluded that this lan-
guage did not provide ‘‘such prescribed standards or
principles, courses of procedure, and rules of decision
as is [required] to justify the delegation of powers
attempted thereby . . . .’’ Id., 633. We conclude that,
contrary to the plaintiffs’ assertions, the standards
imposed by subsection (b) (1) and (7) provide greater
guidance to the governor than did the statute in
Stoddard.
We acknowledge that subsection (b) (1) and (7) is a
broad grant of authority from the General Assembly to
the governor. A broad grant of authority, however, is
not the same as limitless or standardless authority. As
we have explained, although the General Assembly may
not delegate its ‘‘law-making’’ function, it may delegate
‘‘some considerable segment of its legislative author-
ity.’’ (Emphasis added.) Salmon Brook Convalescent
Home, Inc. v. Commission on Hospitals & Health Care,
177 Conn. 356, 363, 417 A.2d 358 (1979). The United
States Supreme Court has similarly explained that, once
the legislature has made a policy determination, ‘‘[i]t is
no objection’’ that the legislation ‘‘call[s] for the exer-
cise of judgment, and for the formulation of subsidiary
administrative policy within the prescribed statutory
framework.’’ Yakus v. United States, 321 U.S. 414, 425,
64 S. Ct. 660, 88 L. Ed. 834 (1944); see also Whitman
v. American Trucking Associations, Inc., 531 U.S. 457,
475, 121 S. Ct. 903, 149 L. Ed. 2d 1 (2001) (‘‘[a] certain
degree of discretion, and thus of [law-making], inheres
in most executive or judicial action’’ (internal quotation
marks omitted)). In a recent concurrence in connection
with the United States Supreme Court’s denial of injunc-
tive relief pertaining to the California governor’s
COVID-19 restrictions on the number of people permit-
ted in houses of worship, Chief Justice John Roberts
emphasized the need for elected leaders to have broad
authority to respond to rapidly evolving emergencies.
See South Bay United Pentecostal Church v. Newsom,
U.S. , 140 S. Ct. 1613, 207 L. Ed. 2d 154 (2020)
(Roberts, C. J., concurring in denial of application for
injunctive relief). He explained that ‘‘[t]he precise ques-
tion of when restrictions on particular social activities
should be lifted during the pandemic is a dynamic and
fact-intensive matter subject to reasonable disagree-
ment. . . . When [elected] officials undertake . . . to
act in areas fraught with medical and scientific uncer-
tainties, their latitude must be especially broad.’’ (Cita-
tion omitted; emphasis added; internal quotation marks
omitted.) Id.In enacting § 28-9 (b), the General Assembly was as
precise as it could be in defining the contours of the
governor’s authority given that there are myriad serious
disasters that could arise and the actions the governor
would be required to take could vary significantly from
one serious disaster to another. See, e.g., University
of Connecticut Chapter, AAUP v. Governor, supra, 200
Conn. 398 (‘‘these standards are constitutionally suffi-
cient under our law in that they are as definit[e] as is
reasonably practicable under the circumstances’’ (inter-
nal quotation marks omitted)); see also American
Power & Light Co. v. Securities & Exchange Commis-
sion, 329 U.S. 90, 105, 67 S. Ct. 133, 91 L. Ed. 103 (1946)
(‘‘[t]he legislative process would frequently bog down
if Congress were constitutionally required to appraise
[beforehand] the myriad situations to which it wishes a
particular policy to be applied and to formulate specific
rules for each situation’’); Hogan v. Dept. of Children &
Families, supra, 290 Conn. 572 (‘‘[i]n order to render
admissible such delegation of legislative power . . . it
is necessary that the statute declare a legislative policy,
establish primary standards for carrying it out . . . and
with such degree of certainty as the nature of the case
permits’’ (emphasis added; internal quotation marks
omitted)).12 What could be statutorily or constitution-
ally appropriate in one serious disaster may not be in
another. As Senator Martin M. Looney explained during
a special, statutorily created legislative committee’s
September 4, 2020 meeting to discuss Governor Lamont’s
public health emergency declaration, § 28-9 is broad
because the governor must be able to quickly address
the serious disaster. Declaration of a Public Health
Emergency Committee Meeting (September 4, 2020),
available at https://ct-n.com/ctnplayer.asp?odID=17659
(13:10 through 13:36) (last visited March 29, 2021).
Requiring more specific standards ‘‘would hamper the
flexibility needed’’ for the governor to respond to the
myriad different circumstances that may constitute a
serious disaster. University of Connecticut Chapter,
AAUP v. Governor, supra, 399.
Moreover, it is reasonable for the legislature to con-
clude that the executive branch of government would
be far better suited to respond to a serious disaster
with the speed and flexibility needed to protect the
public health and welfare. Specifically, the legislature
itself is not in session continuously and would not be
well positioned to mount a rapid response to a serious
disaster, especially one that develops and evolves
quickly or unpredictably, and thus requires an ongoing
and agile response. Indeed, the former speaker of the
House of Representatives, Joe Aresimowicz, noted dur-
ing the September, 4, 2020 meeting of the Declaration
of a Public Health Emergency Committee that, because
the Connecticut legislature is part-time, they are ‘‘not
structured to handle [a serious disaster].’’ Declaration
of a Public Health Emergency Committee Meeting,
supra, (17:56). Similarly, Senator Mary Daugherty Abrams,
the senate chairperson of the Public Health Committee,
explained there are times ‘‘we need to take swift, delib-
erate action as a government to protect the public’s
health, and the Executive Branch is best equipped to
do that. . . . There are 187 members of the legislative
body, and the thought that we could all come together
swiftly and deliberately to respond to what’s come up
with the COVID . . . crisis is not realistic.’’ Id., (1:09:19
through 1:09:54).
In rejecting a similar argument that emergency pow-
ers of the governor of Kentucky during the COVID-19
pandemic violated the separation of powers provision
of that state’s constitution, the Supreme Court of Ken-
tucky explained that it was reasonable for the governor
to have greater authority in times of emergency ‘‘given
[the] government’s tripartite structure with a legisla-
ture that is not in continuous session.’’ (Emphasis
added.) Beshear v. Acree, 615 S.W.3d 780, 806 (Ky. 2020).
The court further explained that ‘‘[h]aving a citizen leg-
islature that meets part-time as opposed to a full-time
legislative body that meets year-round, as some states
have, generally leaves [the Kentucky] General Assembly
without the ability to legislate quickly in the event of
emergency unless the emergency arises during a regular
legislative session.’’ (Footnote omitted.) Id., 807. The
same rationale applies here.
That having been said, we pause to note that the
legislature chose not to include a mechanism for more
direct legislative oversight of a declared civil prepared-
ness emergency, as it did for a man-made disaster under
§ 28-9 (a) or a public health emergency declaration
under § 19a-131a. See General Statutes § 28-9 (a) (‘‘[a]ny
such proclamation, or order issued pursuant thereto,
issued by the Governor because of a disaster resulting
from man-made cause may be disapproved by majority
vote of a joint legislative committee’’); see also General
Statutes § 19a-131a (b) (1) (‘‘[a]ny . . . declaration [of
a public health emergency] issued by the Governor may
be disapproved and nullified by majority vote of a com-
mittee consisting of the president pro tempore of the
Senate, the speaker of the House of Representatives,
the majority and minority leaders of both houses of the
General Assembly and the cochairpersons and ranking
members of the joint standing committee of the General
Assembly having cognizance of matters relating to pub-
lic health’’). Several high courts of our sister states have
noted the importance of such legislative oversight under
similar statutory schemes. See, e.g., Beshear v. Acree,
supra, 615 S.W.3d 811–12 (‘‘the [Kentucky] General
Assembly [is allowed] to make the determination itself if
the [g]overnor has not declared an end to the emergency
‘before the first day of the next regular session of the
General Assembly’ ’’); Desrosiers v. Governor, 486
Mass. 369, 384, 158 N.E.3d 827 (2020) (‘‘the [Massachu-
setts] [l]egislature also has at its disposal a way to curb
the [g]overnor’s powers under the [Massachusetts Civil
Defense Act], should it desire to do so’’); Elkhorn Bap-
tist Church v. Brown, 366 Or. 506, 526, 466 P.3d 30(2020) (‘‘the [Oregon] [g]overnor’s emergency powers
are limited in that they can be terminated by the [Ore-
gon] legislature’’). This observation does not alter our
constitutional analysis in the present case but war-
rants mention.
Legislative oversight has not been altogether lacking.
In the related context of considering Governor Lamont’s
public health emergency declaration, a legislative com-
mittee, namely, the Declaration of a Public Health Emer-
gency Committee, formed pursuant to § 19a-131a (b)
(1), has met twice since Governor Lamont first declared
the civil preparedness and public health emergencies.
The committee, consisting of the president pro tempore
of the Senate, the speaker of the House of Representa-
tives, the majority and minority leaders of both houses,
and the cochairpersons and ranking members of the
Public Health Committee, met for the first time in the
history of this state on March 11, 2020, just one day after
the governor first declared the public health and civil
preparedness emergencies. During that meeting, the com-
mittee met ‘‘to consider [Governor Lamont’s] declara-
tion of a public health emergency.’’ Declaration of a Pub-
lic Health Emergency Committee, Meeting Minutes (March
11, 2020) p. 1, available at https://www.cga.ct.gov/ph/tfs/
20200311_Public%20Health%20Emergency%20Committee/
20200311/Minutes_pdf (last visited March 29, 2021). Sena-
tor Looney explained to the committee that, ‘‘under the
statutes, this committee has the right to veto the [g]over-
nor’s plan within [seventy-two] hours of this taking action
. . . .’’ Id., p. 2. When asked by Senator Leonard A. Fasano
whether the committee would be required to reconvene
if Governor Lamont decided to reinvoke his authority
after six months, Senator Looney explained that, if the
governor ‘‘wanted to extend it beyond that time, it would
require a new order, and [the committee] would have a
new opportunity to meet like [it] did this time.’’ Id. Finally,
Senator Looney closed the meeting by noting that ‘‘it is
within the committee’s capacity to convene again by Fri-
day [March 13, 2020] at 2:25 p.m., but, barring some other
emergency, the committee has met the statutory require-
ments.’’ Id., p. 4. The committee did not meet again within
seventy-two hours of the first proclamation.
Thereafter, the committee met again on September
4, 2020, three days after Governor Lamont’s September
1, 2020 declarations. After discussion regarding the
scope of Governor Lamont’s authority under both a
civil preparedness emergency and a public health emer-
gency,13 the committee took up a motion to disapprove
of Governor Lamont’s declaration of a public health
emergency pursuant to § 19a-131a. Declaration of a Pub-
lic Health Emergency Committee Meeting, supra,
(1:28:10 through 1:28:17). The motion failed, and the
committee did not vote to disapprove of Governor
Lamont’s public health emergency declaration. Id.,
(1:43:29 through 1:44:11). We take this inaction as an
indication of the committee’s acquiescence in Governor
Lamont’s actions pursuant to his public health emer-
gency authority. Although we most often employ this
principle when ‘‘the legislature [fails] to take corrective
action as manifesting the legislature’s acquiescence in
our construction of a statute’’; (internal quotation marks
omitted) Spiotti v. Wolcott, 326 Conn. 190, 202, 163 A.3d
46 (2017); the same principle is insightful here. In this
case, the legislative committee with the statutory
authority to disapprove of Governor Lamont’s public
health emergency declaration met on two occasions
and declined to exercise its disapproval powers either
time. Although not the equivalent of full legislative ratifi-
cation, this procedure should significantly ameliorate
concerns regarding legislative oversight. Should the
plaintiffs seek to impose greater oversight of the gover-
nor’s authority under the statutory scheme, whether in
the context of a public health emergency or a civil
preparedness emergency, the proper avenue is through
an amendment to the statute through the legislature,
not this court. See, e.g., Castro v. Viera, 207 Conn. 420,
435, 541 A.2d 1216 (1988) (‘‘[I]t is up to the legislatures,
not courts, to decide on the wisdom and utility of legisla-
tion. . . . [C]ourts do not substitute their social and
economic beliefs for the judgment of legislative bodies,
[whose members] are elected to pass laws.’’ (Internal
quotation marks omitted.)).
In sum, § 28-9 sets forth the General Assembly’s pol-
icy that, in the event of a serious disaster, the health,
safety, and welfare of Connecticut’s residents is of
utmost importance. Section 28-9 (b) affords the gover-
nor considerable latitude to employ the ‘‘necessary
means’’ for accomplishing that policy objective. Nor-
walk Street Railway Co.’s Appeal, 69 Conn. 576, 594,
37 A. 1080 (1897). But that latitude is neither stan-
dardless nor limitless. In addition to the limitations
explicated previously, in the event an aggrieved party
believes the governor has taken any particular action
that exceeds his lawful authority or violates the state
constitution, that party may seek redress from the
courts. The legislature may also deem it proper to
impose greater oversight of the governor’s actions dur-
ing a proclaimed civil preparedness emergency or other-
wise amend or repeal § 28-9 to further limit the
governor’s authority.
Our conclusion that, although subsection (b) (1) and
(7) represents a broad grant of authority to the gover-
nor, it is nonetheless constitutional finds support in the
analysis of similar issues from the high courts of our
sister states. For example, the Pennsylvania Supreme
Court recently rejected a separation of powers chal-
lenge to that state’s Emergency Management Services
Code, which permits the governor of Pennsylvania to
proclaim a disaster emergency and to take actions simi-
lar to those authorized by § 28-9. 35 Pa. Stat. and Cons.
Stat. Ann. § 7301 (c) (West Supp. 2020); see Friends of
Danny DeVito v. Wolf, Pa. , 227 A.3d 872, 892–93,
cert. denied, U.S. , 141 S. Ct. 239, 208 L. Ed. 2d
17 (2020); see also Wolf v. Scarnati, Pa. , 233
A.3d 679, 705 (2020) (recognizing that court had deter-
mined in Friends of Danny DeVito that Pennsylvania
governor’s exercise of authority delegated under Emer-
gency Management Services Code did not violate sepa-
ration of powers doctrine under Pennsylvania
constitution). The court noted in Scarnati that the
‘‘[Pennsylvania] General Assembly, in enacting the stat-
ute, ‘ma[de] the basic policy choices.’ . . . The General
Assembly decided that the [g]overnor should be able
to exercise certain powers when he or she makes a
‘finding that a disaster has occurred or that the occur-
rence of the threat of a disaster is imminent.’ ’’ (Citation
omitted.) Wolf v. Scarnati, supra, 704. The court also
explained that ‘‘the [Pennsylvania] General Assembly
. . . provided ‘adequate standards which will guide and
restrain’ the [g]overnor’s powers. . . . The General
Assembly gave the [g]overnor specific guidance about
what he can, and cannot, do in responding to a disaster
emergency. . . . The powers delegated to the [g]over-
nor are admittedly [far reaching], but nonetheless are
specific. For example, the [g]overnor can ‘[s]uspend
the provisions of any regulatory statute . . . if strict
compliance with the provisions . . . would in any way
prevent, hinder or delay necessary action in coping with
the emergency.’ . . . Broad discretion and stan-
dardless discretion are not the same thing. Only those
regulations that hinder action in response to the emer-
gency may be suspended. It may be the case that the
more expansive the emergency, the more encompassing
the suspension of regulations. But this shows that it is
the scope of the emergency, not the [g]overnor’s arbi-
trary discretion, that determines the extent of the [g]ov-
ernor’s powers under the statute. The General Assembly
itself chose the words in [the Emergency Management
Services Code]. The General Assembly, under its law-
making powers, could have provided the [g]overnor
with less expansive powers under the Emergency Man-
agement Services Code. It did not do so.’’ (Citations
omitted; emphasis altered.) Id., 704–705.
The Supreme Court of Oregon has similarly reasoned
that, although the emergency powers of the governor
of Oregon are broad under that state’s statutory scheme,
they are not unlimited. Elkhorn Baptist Church v. Brown,
supra, 366 Or. 525. The court reasoned that the gover-
nor’s actions must be ‘‘exercised in a manner consistent
with the reason for which they are granted; that is, they
must be exercised to address the declared emergency.
. . . Second, the [g]overnor’s emergency powers . . .
may be exercised only during a declared state of emer-
gency, [and Oregon’s emergency powers law] requires
the [g]overnor to terminate by proclamation when the
emergency no longer exists, or when the threat of an
emergency has passed.’’ (Internal quotation marks omit-
ted) Id., 525–26. Finally, the court noted that the courts
may intervene if the governor’s regulations exceed con-
stitutional limits. Id., 526.
Likewise, the Supreme Court of Kentucky held that
the extent of the Kentucky governor’s authority during
an emergency was not an unconstitutional delegation
of legislative authority in violation of the separation of
powers provisions of the Kentucky constitution. Bes-
hear v. Acree, supra, 615 S.W.3d 806, 812. The court
acknowledged that the governor’s authority is broad,
but, ‘‘[g]iven the wide variance of occurrences that can
constitute an emergency, disaster or catastrophe, the
criteria are necessarily broad and result-oriented, pro-
tect life and property . . . and . . . public . . .
health . . . allowing the [g]overnor working with the
executive branch and emergency management agencies
to determine what is necessary for the specific crisis at
hand. Floods, tornadoes and ice storms require different
responses than threats from nuclear, chemical or bio-
logical agents or biological, etiological, or radiological
hazards but the emergency powers are always limited
by the legislative criteria, i.e., they must be exercised
in the context of a declared state of emergency . . .
designed to protect life, property, health and safety and
to secure the continuity and effectiveness of govern-
ment . . . and exercised to promote and secure the
safety and protection of the civilian population.’’ (Cita-
tions omitted; internal quotation marks omitted.) Id.,
811.
The Supreme Judicial Court of Massachusetts also
recently rejected a separation of powers challenge to
the Massachusetts governor’s authority to issue emer-
gency orders. Desrosiers v. Governor, supra, 486 Mass.
382, 384–85. The court reasoned that, ‘‘because the
[g]overnor’s actions were carried out pursuant to the
authority granted to the [g]overnor in the [Massachu-
setts Civil Defense Act], the emergency orders [did]
not violate [the separation of powers provision of the
Massachusetts constitution].’’ Id., 382. The court also
noted that the act did not interfere with the functions
of the legislature. Id., 383.
The plaintiffs, however, point to a recent decision of
the Supreme Court of Michigan that they claim supports
their contention that § 28-9 (b) (1) and (7) is an uncon-
stitutional delegation of legislative authority. In a
divided opinion, the Michigan high court concluded that
the governor of Michigan did not possess the authority
to exercise emergency powers under the Michigan
Emergency Powers of the Governor Act because that
act was an unlawful delegation of legislative power
to the executive branch in violation of the Michigan
constitution. In re Certified Questions from the United
States District Court, Western District of Michigan,
Southern Division, 506 Mich. 332, 372, 958 N.W.2d 1(2020). The court reasoned that the powers conferred
by the act were ‘‘remarkably broad’’; id., 363; and there
were not sufficient standards in place to constrain the
governor’s actions. See id., 367–71. The plaintiffs in the
present case contend that, as with the Michigan statute,
subection (b) (1) and (7) ‘‘impermissibly confers truly
unlimited power on the governor . . . .’’ We are not
persuaded. As the Chief Justice of the Michigan
Supreme Court noted in her concurring and dissenting
opinion in that case, the statute does not violate the
separation of powers provision because ‘‘there are
many ways to test the [g]overnor’s response to this life-
and-death pandemic.’’ In re Certified Questions from
the United States District Court, Western District of
Michigan, Southern Division, supra, 422 (McCormack,
C. J., concurring in part and dissenting in part). Namely,
‘‘the statute allows a legal challenge to the [g]overnor’s
declaration that COVID-19, as a threshold matter, con-
stitutes a ‘great public crisis’ that ‘imperil[s]’ ‘public
safety.’ . . . For another example, any order issued
under the statute could be challenged as not ‘necessary’
or ‘reasonable’ to ‘protect life and property or to bring
the emergency situation within the affected area under
control.’ . . . In these ways and others, the courts can
easily be enlisted to assess the exercise of executive
power, measuring the adequacy of its factual and legal
bases against the statute’s language.’’ (Citations omit-
ted.) Id. The Chief Justice also noted that the legislature
itself might revisit its decision to have passed the statute
in the first place. Id. Specifically, ‘‘[i]f the [l]egislature
saw fit, it could repeal the statute. Or, the [l]egislature
might amend the law to alter its standards or limit its
scope. Changing the statute provides a ready mecha-
nism for legislative balance.’’ Id. The Chief Justice fur-
ther explained that the governor is also politically account-
able to voters, which serves as an additional check. Id.
Finally, the Chief Justice noted that the majority had
departed from one part of their long-standing test for
delegation of legislative power, namely, that ‘‘the stan-
dard must be as reasonably precise as the subject matter
requires or permits.’’ Id., 423 (McCormack, C. J., concur-
ring in part and dissenting in part). We find the reason-
ing of the Chief Justice’s concurrence and dissent to
be more persuasive.
As we noted in our per curiam ruling in the present
case, we are mindful of the incredibly difficult economic
situation that the plaintiffs and thousands of others
across the state are in given the COVID-19 pandemic.
Individuals and families have been economically
upended as a result of the pandemic. We are also mind-
ful of the more than 300,000 Connecticut residents who
have been infected with COVID-19 and, most tragically,
the nearly 8000 Connecticut citizens who have passed
away in the more than yearlong pandemic. As we
explained, the governor is charged with protecting the
health, safety, and welfare of the citizens of this state,
and the COVID-19 pandemic has presented a dynamic
and unpredictable ‘‘serious disaster.’’ The question of
when various restrictions imposed as a result of the
pandemic should be lifted is a fact intensive inquiry that
involves an understanding of ever evolving scientific
guidance, including the effects and impacts of newly
discovered strains of the virus and their resistance to
recently approved vaccines. It is likely that reasonable
minds may differ as to when each restriction should be
lifted, but, as Chief Justice Roberts explained, ‘‘[w]hen
[elected] officials undertake . . . to act in areas
fraught with medical and scientific uncertainties, their
latitude must be especially broad.’’ (Internal quotation
marks omitted.) South Bay United Pentecostal Church
v. Newsom, supra, 140 S. Ct. 1613 (Roberts, C. J., concur-
ring in denial of application for injunctive relief). As
long as Governor Lamont is acting within this admit-
tedly broad statutory and constitutional authority—
which we conclude that he is—it is not the job of this
court to second-guess those policy decisions.
The judgment is affirmed.
In this opinion the other justices concurred.
* March 29, 2021, the date that this decision was released as a slip opinion,
is the operative date for the beginning of all time periods for the filing of
any postopinion motions or petitions.
1
See Coronavirus Resource Center, Johns Hopkins University & Medicine,
COVID-19 Dashboard by the Center for Systems Science and Engineering (CSSE)
at John Hopkins University (JHU), available at https://coronavirus.jhu.edu/
map.html (last visited March 29, 2021); Connecticut Department of Public
Health, Connecticut’s COVID-19 Response, available at https://portal.ct.gov/
coronavirus (last visited March 29, 2021).
2
In addition to Executive Order Nos. 7D, 7X, 7MM, and 7ZZ, the provisions
of which we have set forth in the text of this opinion, Executive Order No.
7G clarified the limits of Executive Order No. 7D on businesses such as the
pub, allowing them ‘‘to sell sealed containers of alcoholic liquor for [pickup]
at such restaurant, café or tavern’’ under certain conditions, including a
requirement that the alcohol purchase ‘‘accompany a [pickup] order of food
prepared on the premises . . . .’’ Executive Order No. 7G (March 19, 2020).
Executive Order No. 7N directed businesses that remained open to serve
food and drink for off-premise consumption to ‘‘limit entrance of customers
into their locations to the minimum extent necessary to pick up and/or pay
for orders, use touchless payment systems, and require remote ordering
and payment . . . .’’ Executive Order No. 7N (March 26, 2020). Executive
Order No. 7T expanded the list of sealed containers of alcohol that liquor
permit holders could sell under the conditions set forth in Executive Order
No. 7G.
3
Oral argument was conducted using remote technologies because the
Superior Court buildings at the time were closed to the public for most
purposes as a result of the pandemic.
4
Following oral argument, we ordered the parties to file supplemental
briefs addressing the questions of whether Governor Lamont abandoned
reliance on § 19a-131a as a legal basis to support the challenged executive
orders and, assuming he did not, whether his authority resulting from a
public health emergency declaration, alone, supports the challenged execu-
tive orders. In their supplemental brief, the plaintiffs contend, as the trial
court concluded, that Governor Lamont abandoned reliance on § 19a-131a.
Assuming he did not abandon reliance on § 19a-131a, the plaintiffs claim
that the governor’s authority resulting from a public health emergency,
alone, does not support any of the challenged executive orders. Governor
Lamont contends that he has not abandoned reliance on § 19a-131a as a
legal basis to support the actions taken pursuant to § 28-9 (b) (1). He also
contends, however, that he can rely on § 19a-131a as authority to issue only
Executive Order Nos. 7MM and 7ZZ because those are the only orders that
fall within the governor’s authority to modify statutes during a public health
emergency pursuant to § 28-9 (b) (1). Because the parties agree that § 19a-
131a, alone, does not provide authority for Governor Lamont to issue all of
the challenged executive orders, we must consider whether § 28-9 provides
that authority.
5
We subsequently discuss in this opinion whether there is any analytic
difference between a ‘‘serious disaster’’ and a ‘‘major disaster,’’ and conclude
there is not.
6
The Pennsylvania Supreme Court recently reached a similar conclusion
under Pennsylvania law. See Friends of Danny DeVito v. Wolf, Pa. ,
227 A.3d 872, 888–89, cert. denied, U.S. , 141 S. Ct. 239, 208 L. Ed.
2d 17 (2020). Under state law, the governor of Pennsylvania is authorized
to declare a disaster emergency ‘‘upon finding that a disaster has occurred
or that the occurrence or the threat of a disaster is imminent.’’ 35 Pa.
Stat. and Cons. Stat. Ann. § 7301 (c) (West Supp. 2020). The Pennsylvania
Emergency Management Services Code defines ‘‘disaster’’ as ‘‘[a] man-made
disaster, natural disaster or war-caused disaster.’’ 35 Pa. Stat. and Cons.
Stat. Ann. § 7102 (West Supp. 2020). Similar to the definition of ‘‘major
disaster’’ in § 28-1 (2), the Pennsylvania Emergency Management Services
Code defines ‘‘natural disaster’’ as ‘‘[a]ny hurricane, tornado, storm, flood,
high water, wind-driven water, tidal wave, earthquake, landslide, mudslide,
snowstorm, drought, fire, explosion or other catastrophe which results in
substantial damage to property, hardship, suffering or possible loss of
life.’’ (Emphasis in original.) 35 Pa. Stat. and Cons. Stat. Ann. § 7102 (West
Supp. 2020). The plaintiffs in Friends of Danny DeVito claimed that the
COVID-19 pandemic was not a ‘‘natural disaster’’ because it was ‘‘not of the
same type or kind’’ as those listed in the statutory definition in § 7102.
Friends of Danny DeVito v. Wolf, supra, 888. The Pennsylvania Supreme
Court rejected this argument and concluded that the COVID-19 pandemic
qualified as a natural disaster. Id. The court explained that the ‘‘specific
disasters in the definition of ‘natural disaster’ themselves lack commonality’’;
id.; and, by ‘‘including the language ‘other catastrophe which results in
substantial damage to property, hardship, suffering or possible loss of life,’
it [was] clear that the General Assembly intended to expand the list of
disaster circumstances that would provide [the Pennsylvania governor] with
the necessary powers to respond to exigencies involving vulnerability and
loss of life.’’ (Emphasis in original.) Id., 889.
7
Indeed, we note that General Statutes § 28-9a, which sets forth additional
actions the governor may take in the event of an emergency or major disaster,
explicitly provides that ‘‘ ‘[m]ajor disaster,’ ‘emergency’ and ‘temporary hous-
ing’ as used in this section have the same meanings as the terms are defined,
or used, in the [federal] Disaster Relief Act of 1974 . . . .’’ (Citation omitted.)
General Statutes § 28-9a (d).
8
Just as the federal government was faced with major logistical challenges
in order to stem the spread of COVID-19, such as distributing supplies from
a national stockpile, so, too, was this state. Chapter 517 contains various
provisions that demonstrate the need for a civil preparedness emergency
to address the logistical challenges posed by a pandemic of the magnitude
presented by the COVID-19 pandemic. See General Statutes § 28-1 (4) (defin-
ing ‘‘civil preparedness’’ to include ‘‘all those activities and measures
designed or undertaken (A) to minimize or control the effects upon the
civilian population of major disaster or emergency’’ such as ‘‘the procure-
ment and stockpiling of necessary materials and supplies’’); General Statutes
§ 28-11 (a) (during civil preparedness emergency or public health emergency,
governor may take possession ‘‘(3) of any antitoxins, pharmaceutical prod-
ucts, vaccines or other biological products’’ (emphasis added)); General
Statutes § 28-16 (‘‘commissioner [of emergency services and public protec-
tion] is empowered, in anticipation of . . . any disaster, to purchase and
maintain a stockpile of medical supplies . . . and any other supplies which
in his opinion are necessary and desirable to afford relief and assistance
to the people of the state in an emergency’’). These provisions make clear that
civil preparedness emergencies, under § 28-9, and public health emergencies,
under § 19a-131a, are related and interconnected.
9
Section 28-1 (2) also provides that a ‘‘major disaster’’ includes ‘‘any
catastrophe’’ that ‘‘(A) in the determination of the President, causes damage
of sufficient severity and magnitude to warrant major disaster assistance
under the [Stafford Act] . . . to supplement the efforts and available
resources of this state . . . in alleviating the damage, loss, hardship, or
suffering caused by such catastrophe . . . .’’ As we have explained, Presi-
dent Trump’s determination that the impacts of the COVID-19 pandemic on
this state were ‘‘of sufficient severity and magnitude to warrant a major
disaster declaration under the [Stafford Act]’’; Federal Emergency Manage-
ment Agency, supra, 85 Fed. Reg. 31,542; provides further support for the
conclusion that the COVID-19 pandemic constitutes a serious disaster.
10
There are numerous statutory examples of the General Assembly’s dele-
gating to the governor the responsibility of protecting the people of this
state. See, e.g., General Statutes § 3-1 (governor shall ‘‘take any proper action
concerning . . . the enforcement of the laws of the state and the protection
of its citizens’’); General Statutes § 3-6a (governor may restrict ‘‘movement
of persons and vehicles upon the streets and highways of the state’’ during
‘‘extreme weather conditions or other acts of nature’’); General Statutes
§ 16a-11 (governor may declare ‘‘energy emergency’’ and order energy emer-
gency plan); General Statutes § 19a-70 (governor may proclaim emergency
due to short supply of ‘‘antitoxin or other biologic product’’ during epidemic
and appoint advisory committee to recommend ‘‘the priority of the supply,
distribution and use of such biologic products in the interest of the health,
welfare and safety of the people of the state’’).
11
We acknowledge that the governor has twice renewed the civil prepared-
ness emergency and, at the same time, declared new civil preparedness
emergencies, and has renewed the executive orders modifying or suspending
statutes and regulations. The statutory six month temporal limitation, how-
ever, requires the governor, at a minimum, to continuously evaluate the
necessity of the executive orders and to justify their continued existence.
As we discuss hereinafter, although this is a broad grant of authority, and
there may well be instances in which a challenger to the governor’s continued
actions can demonstrate that they have lasted an improper duration, that
issue is not squarely before us, and nothing in this opinion should be con-
strued as offering an opinion on that separate issue. Indeed, the plaintiffs
do not challenge the governor’s renewal of the emergencies. Similarly, the
plaintiffs acknowledge that they ‘‘are not challenging the good intentions
of [Governor Lamont] in issuing his executive orders’’ and ‘‘are not asking
[this] court to second-guess the policy judgments of [Governor Lamont] or
to determine whether his executive orders and the sector rules make sense
or are fair.’’
12
We note that ‘‘[o]nly twice in this country’s history (and that in a single
year) [has the United States Supreme Court] found a delegation excessive—
in each case because Congress had failed to articulate any policy or standard
to confine discretion.’’ (Emphasis in original; internal quotation marks omit-
ted.) Gundy v. United States, supra, 139 S. Ct. 2129 (plurality opinion).
13
We note that several members of the committee, including Senator
Fasano and Representative Aresimowicz, noted that the committee was not
authorized to take any action with respect to Governor Lamont’s actions
pursuant to the civil preparedness emergency declaration. See, e.g., Declara-
tion of a Public Health Emergency Committee Meeting, supra, (08:27 through
09:06), remarks of Senator Fasano; id., (09:13 through 09:42), remarks of
Representative Aresimowicz. As we previously discussed in this opinion,
we fail to see why the legislature chose not to include a provision for
legislative oversight of a governor’s proclaimed civil preparedness emer-
gency, other than for a man-made disaster. Certainly, this could be addressed
by the General Assembly in its current, or a future, legislative session, if
the legislature deems it appropriate.