The lawyer for the former UPS franchisee who flouted state mask rules says Vermonters “will truly have no voice against the power of the executive branch of government” if his client “is denied access to justice through the courts.”
That declaration by attorney Robert Kaplan comes from a reply filed Thursday to state lawyers’ opposition to Andre “Mike” Desautels’ request for a new trial.
The state’s position is “disingenuous, immersed in fantasy and demonstrates total disregard for the basic rights of individuals to contest executive power overreach through the courts,” Kaplan wrote.
Orleans County Judge Mary Miles Teachout ruled last month that Desautels would have to comply with the mask mandate to stay in business. Desautels had run a UPS franchise on Main Street in Newport. But in February, UPS corporate leaders cut ties with him after he refused to comply with Gov. Phil Scott’s executive order requiring business employees who interact with the public to wear face coverings. Attorney General TJ Donovan sued Desautels in civil court soon after — in the first legal test of the Covid-19 mandate.
Desautels asked for a new trial April 8, complaining that his original lawyer, Deborah Bucknam, took actions he never authorized. In court papers Monday, state lawyers argued that the request is without merit and asked the judge to dismiss it.
“Defendants cite no legal authority supporting the idea that a final hearing on the merits can be ‘set aside.’ The state is aware of none,” wrote Rachel Smith, a lawyer with the Attorney General’s Office.
Kaplan wrote that the state wants “to quash all opposition Mr. Desautels might present through active dissent by denying him basic rights of access to justice through the courts.” He characterized the lawsuit as a “zealous pursuit” to make an example.
The lawyer’s central argument is that because of Bucknam’s actions agreeing with the state to move to a trial quickly without talking to Desautels, his client didn’t have an opportunity to assert counterclaims, discovery rights or jury trial rights.
“It is hard to imagine a more clear cut example of manifest injustice,” Kaplan wrote, adding, “The counsel they were able to secure fast enough to have representation … made decisions for Defendants without obtaining the required informed consent or authority to make those decisions.”
He restated the thrust of his arguments in the original motion, arguing that Desautels had no chance for preparation.
A bulk of Thursday’s court filing casts Desautels as a martyr-like figure fighting executive overreach, a sentiment expressed at a rally of support for the business owner in February.
“By choosing to take a stand against the unprecedented power asserted by one single individual … Desautels has become a household name throughout this State and a lightning rod for those who regard the claim to unlimited power by the Governor as one step too close to tyranny,” Kaplan wrote.
The legal reply also takes aim at Teachout, claiming she was “not without responsibility for the impingement on” Desautels’ rights.
Kaplan pointed to two cases of inaction by the judge — she didn’t ask Desautels directly if he understood the ramifications of Bucknam’s decision, nor did she ask Bucknam to confer with her client.
“Desautels did not agree with this decision and did not know how to object in the moment,” Kaplan wrote.
The next hearing in the case is April 29. According to court documents, the motion for a new trial will be heard then.
If Teachout decides to throw out the motion, the next move is to decide whether Desautels will face any penalties for violating the mandate. Under law, the maximum penalty is a fine of $1,000 per violation, with each day of noncompliance counting as its own violation.
Read the story on VTDigger here: Lawyer for former UPS franchisee rebukes state call to scrap new trial motion.
