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 Jonathan Corbett, Civil Rights Attorney

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cuomo

Cuomo to Court Considering NYC Midnight Food Curfew: “The Government Is Not Required to Justify an Executive Order”

One by one, New York Governor Cuomo’s arbitrary, irrational rules are coming down. Last week, I wrote that challenges to a ban on advertising or ticketing music at restaurants was destroyed as a result of a pair of court challenges (one of which I argued). This week, a federal court in Brooklyn will hear arguments on another challenge I’m working on: the midnight food curfew.

What’s that? New York City finally just got the blessing of the Governor to resume indoor dining last week — well over 6 months after closing mid-March and likely last in the nation — with massive restrictions: 25% max capacity, air filtration upgrades, and a midnight closing time. Yes, for some reason, the Governor decided that it is only safe to be in a restaurant until the clock strikes 12, after which your risk of corona becomes excessively high. To clarify, this rule applies to restaurants — even those serving no alcohol — and applies even though only seated dining is allowed with full social distancing (no mingling, no dancing, no fun).

I filed suit on behalf of a Brooklyn restaurant to challenge this rule (which received some media attention, and a hearing on our motion for a preliminary injunction is tomorrow at 12:30 PM, public audio: (571) 353-2300, access code 188465608#. The written briefing on the motion went pretty normally… tl;dr: I argued that there’s no reason to subject NYC to restrictions that aren’t used elsewhere in the state or country, they argued that NYC is special because of it’s population, I replied that they failed to demonstrate why higher population means restaurants must turn into a pumpkin when the clock strikes 12. If you want the long version of that:

Columbus Ale House v. Cuomo – Motion for Preliminary Injunction (.pdf)

Columbus Ale House v. Cuomo – Motion for Preliminary Injunction, Opposition (.pdf)

Columbus Ale House v. Cuomo – Motion for Preliminary Injunction, Reply (.pdf)

It gets more interesting: the state included a declaration by Dr. Elizabeth Dufort, Director of Epidemiology for the NYS Department of Health, and the judge ordered her to appear at the hearing for questioning. This is perhaps the first time I’ve seen a judge take serious interest in examining the facts, seemingly triggered by Dr. Dufort’s apparent expertise in everything from how people behave in bars, to how restaurants handle arriving and departing guests, to the details of state law, to medicine (the latter of which I concede she may be qualified to discuss).

The government apparently did not like that order, and filed a motion for reconsideration, noting that Dr. Dufort was not available and that her testimony does not matter because “the government is not required to justify an executive order.” After a scathing opposition, they “found” the Dr. and withdrew their motion.

I very much look forward to asking Dr. Dufort some difficult questions tomorrow.

Two Courts Destroy NY SLA’s Ban on Advertising and Ticketing Music

Four weeks ago, I filed a lawsuit on behalf of an industry association and several restaurants against New York’s State Liquor Authority for a curious new coronavirus-related rule that appeared on their Web site: a ban on advertising music offerings or charging admission at liquor-licensed establishments that sell food (i.e., restaurants). Licensees called the SLA to clarify, and were told in no uncertain terms that any advertising of any music whatsoever, or any attempt to charge an entrance fee — including table minimums — could result in a license suspension. The suit was filed in the U.S. District Court for the Southern District of New York, and a motion for a preliminary injunction (asking the judge to temporarily put a hold on the rule) was set for expedited briefing.

The state already allows only restaurants — not bars or clubs without a full menu — to operate, and only with seated dining, strict capacity limits, social distancing requirements, and other limitations. Dance parties, concerts, etc., were already prohibited, so what’s the difference for coronavirus mitigation purposes if your favorite eatery has a band playing while you have dinner? Or if you have to pay to enter?

It seems the state’s attorney’s couldn’t come up with an answer to that question, and so, contradicting the phone guidance from the SLA issued pre-lawsuit — surely developed at the demand of Governor Cuomo — the state conceded that the advertising and ticketing bans apply only to “performance events” — not to legal “incidental music” at restaurants. A federal judge today accepted that limitation and denied our motion for a preliminary injunction since the issue is essentially moot.

“And the government has explicitly clarified that advertising for incidental music is permitted. … The State’s representative confirmed that during our argument here.”

Hearing Transcript (.pdf)

The Erie County Supreme Court also heard a challenge to the matter, and on Tuesday took a bit of a different approach: the Court found that the rule did affect legal incidental music and therefore it was unconstitutional. The transcript of these proceedings is not yet published — I’ll seek to update when it is — but the effect of this is roughly similar: to the extent that a restaurant wants to advertise or charge to see its lawful music offerings, it may.

The courtroom drama comes as New York continues to have a “flat” curve, as it has for months. Despite this, upstate New York restaurants have opened only with substantial limits and New York City restaurants reopened indoor dining yesterday — with 25% capacity and a midnight food curfew, after 198 days of closure.

NY Coronavirus Curve
New York’s coronavirus curve has been flat for about 3 months. Source.

The Governor is playing politics with re-opening New York City, whether because of his ongoing feud with Mayor Bill de Blasio, because he does not want to relinquish his emergency authority, or maybe just because of a bias against those who live in the city. Slowly but surely, however, the Governor’s rules (and, let’s be real: there’s no way the SLA made this rule without a demand from Cuomo) are being dismantled.

Cuomo Barks Louder for Travel Quarantine, but Health Department Offers “Hearing” to Escape

Almost as if he was a reader of my blog post noting that N.Y. Gov. Cuomo has so far done not a damn thing to enforce his travel quarantine order, yesterday he announced that he’d station police officers at airports to force them to fill out contact tracing forms.

As I considered re-instatement of my lawsuit against the travel quarantine, voluntarily dismissed because of Cuomo’s failure to enforce, I noticed something new in the Health Department’s order: anyone who can demonstrate that they shouldn’t need to be quarantined can request a hearing.

Well, isn’t that fancy?  I, for one, am going to take him up on it, and I encourage everyone who might possibly travel to New York to do the same.  So here’s a quick sample of what a hearing request might look like*:

Quarantine Hearing Request Form

Quarantine Hearing Request (Word Version — fill out details, then print & mail)

Quarantine Hearing Request (PDF Version — print, hand-write details, & mail)

 

 

Enjoy!

 

* This form is a sample document preparation.  It is not legal advice; legal advice can only be provided by a licensed attorney who has reviewed your particular circumstances.  No attorney-client relationship is created by your downloading or use of these documents.  Please do not e-mail me questions about use of this form; I would only be able to respond if and when I agree to be retained to assist with your case.

Cuomo Takes No Steps to Enforce Travel Quarantine; Lawsuit Voluntarily Dismissed

NY Traveler Information Form
New York produced these forms for travelers to provide the details necessary to (try to) enforce the Governor’s travel quarantine.

At the end of last month, I had asked a federal court to issue a temporary restraining order against Cuomo’s enforcement of the 14-day travel quarantine currently in effect on those coming to New York from 19 different states, on the simple premise that you can’t protect an area that is already broadly infected (as the entire state of New York is) by use of a quarantine.  A judge refused to issue the order last week, ruling that while the quarantine burdened my right to travel, it was my job to overcome the government’s showing that they had “considered” other options and felt the quarantine was necessary.  In their opposition to my motion, New York presented not a single model, not a single health organization’s (or even a single doctor’s) opinion that a quarantine is necessary in this situation, and not even a prediction of how many cases this would likely prevent.  It seems to me that when the government wants to take our liberty, it should be their job to demonstrate the need to do so, but motions for temporary restraining orders are quite discretionary and unappealable.  That said, the case was free to continue without the temporary relief — although by the time it would be decided, the quarantine would very likely be over.

I’ve decided not to continue this court fight for that reason and because it seems clear to me that the Governor has no intent to actually enforce this quarantine.  To that point, first, last night I flew LAX to JFK, which means I was directly incoming from a state that Cuomo announced had coronavirus statistics that were so high that incoming travelers must self-quarantine for 14 days.  However, no attempt was made to compel the production of any data that would allow the enforcement of the quarantine: although the government had produced a poorly-designed form to collect information, no one was even trying to force travelers to fill it out…

Form Kiosk
However, no one was making any attempt to compel travelers to fill out the forms, and if you didn’t check a bag, you probably wouldn’t have even seen it.

There was merely a table by the baggage claim, with a Health Department employee sitting on his laptop paying no attention, offering the form up to travelers.  No person sought to inform travelers to fill out the form, and there were not even ropes to guide travelers past the kiosk.  While a handful of travelers stopped and fellated the Governor’s ego, the remainder either didn’t see it or, like me, saw it and walked right past.

Second, in the days after the quarantine was announced, the state made clear that “essential workers” are exempt from the quarantine.  That is, if you work for any essential business, you’re free to go on vacation to Miami, Los Angeles, Barcelona, Rome, or Wuhan, China, and then come back to work without the need to quarantine.  This means if you are a waitress, a bartender, a dog walker, a janitor, a gas station attendant, a mechanic, a bank teller, a federal government employee, a transportation employee, work in a medical field, or one of several dozen other jobs, you’re exempt.  By my calculation, this is more than half of the workforce that is exempt.  And if you’re not yet exempt, find someone in New York that will let you walk their dog and you will be.

I’ve not changed my mind that the Governor’s quarantine is wrong and unconstitutional.  But given that it seems to be mere bloviation from Cuomo with no teeth at all, it is not worth spending 40 – 100 hours over the next 18+ months fighting.  So today I file a notice of voluntary dismissal.  Such dismissals are “without prejudice,” meaning I can bring the case back later if I’d like, and I’ll keep an eye on the situation.  That said, if anyone is actually fined or detained because of the quarantine, I would be most eager to speak with them about their case.

N.Y. Gov. Cuomo Doubles-Down on Quarantine, Expands to Half the Country

On June 24th, New York Governor Andrew Cuomo announced a mandatory 14-day quarantine, under penalty of forcible quarantine and large fines, for anyone entering the state from any of 9 “coronavirus hotspot” states.  As you cannot protect a population that is already broadly infected by “quarantine,” I immediately filed suit against this irrational and unconstitutional restriction on our right to travel between the states.

A hearing is scheduled for Thursday at 2 PM on my motion for an emergency temporary restraining order in front of U.S. District Judge Lorna Schofield in the Southern District of New York.  But in the meantime, the Governor has doubled-down by expanding his list to a total of 16 states:

Cuomo Doubles Down
Cuomo Doubles Down — Current Quarantined State List:
AL, AR, AZ, CA, FL, GA, IA, ID, LA, MS, NC, NV, SC, TN, TX, UT.

This list, including the 1st, 2nd, and 3rd most populated states, includes about half the population of the country.

I look forward to seeing Cuomo’s people in court on Thursday.  In the meantime, I’ve filed an amended complaint adding details and challenging the allegedly mandatory form that travelers must fill out when crossing the border (see Exhibit B for that one)…

Corbett v. Cuomo – Complaint (First Amended) (.pdf)

Corbett v. Cuomo – Complaint (First Amended), Ex. A (executive order, .pdf)

Corbett v. Cuomo – Complaint (First Amended), Ex. B (incoming traveler form, .pdf)

Lawsuit Asks Court to “PAUSE” N.Y. Gov. Cuomo’s Travel Quarantine Order

Cuomo Quarantine Press Conference
Cuomo, along with the governors of New Jersey and Connecticut, announce their plans to violate the constitutional right to travel of those entering the states they govern.

This morning, I filed suit against New York Governor Andrew M. Cuomo in regards to the “quarantine” he and two neighboring governors announced yesterday.  This particular quarantine requires anyone incoming to the state who has been to states that the governors find have unacceptably high rates of coronavirus to self-quarantine for 14 days.  Failure to self-quarantine results in forcible quarantine and a massive bill.

New York, perhaps because of the population density of New York City and its reliance on public transportation, was hit almost first and by far the hardest of the states by the coronavirus pandemic.  Since April 7th, however, the state has seen a steady and consistent decline from 799 deaths in a day to 27 a couple days ago.  That said, there are still about 600 new infections confirmed in the state daily, and the best numbers I can crunch suggest that tens of thousands of New Yorkers currently have an active coronavirus infection, whether diagnosed or not.

In this context, it is shocking to me that anyone would propose a quarantine to keep the virus out of New York.  If anything, there are probably places that should be quarantining us (and, many countries are indeed not accepting American tourists right now).  The cat is out of the bag, and coronavirus, although substantially reduced from the peak, can be found in every village, town, and city in the state.  An infected traveler from out-of-state simply cannot affect the statistics when we have tens of thousands of people in the state already who are currently shedding the virus.

This reeks of a political stunt.  Whether it’s retribution for other states imposing travel restrictions on New Yorkers, or a middle finger to Trump for encouraging states to re-open, or an attempt to appear “tough on corona” to voters, I don’t know and don’t care.  What is clear is that this step cannot deliver any public health benefit, but will certainly cause substantial interference with our constitutional right to travel.

“We have a constitutional right to travel?”  Indeed.  Like the right to an abortion or to get married, the right to travel appears in the U.S. Constitution not in explicit words but in the due process clause of the Fifth and Fourteenth Amendments.  Due process involves not only the right to a trial and so forth (“procedural due process”) but also a right to be free from infringements on our liberty absent a good reason (“substantive due process”).  The standard for whether a public health concern is a good enough reason comes from over 100 years ago when a state made smallpox vaccination mandatory and ended up on the receiving end of a lawsuit.  That case, Jacobson v. Massachusetts, 197 U.S. 11
(1905), required a “real or substantial relation” between the health concern and the government’s restriction.  “Real or substantial” is more than just rational, or plausible, but rather courts have required the government to actually explain how A leads to B, and often to consider less invasive means.  (Speaking of, there are obvious alternatives: for example, allowing people to escape quarantine by getting tested, or simply checking body temperature of people flying in.)

My lawsuit, filed in the United States District Court for the Southern District of New York, comes along with a motion for an emergency temporary restraining order.  I shall leave you with the conclusion:

The Governor is free to come before the Court at any time with evidence to show that the challenged order is actually necessary to protect the public health. After all, the state should already be in possession of such evidence before issuing an order as drastic as the one challenged. If and when such evidence is provided, the Court may immediately lift the TRO. Until that time, the government should be ordered to “PAUSE” itself.

Is this motion likely to be successful?  Well, I fight the hard cases, and this is a fight worth fighting.  We’ll leave it to the Court to determine whether the fight wins the day.

Case is Jonathan Corbett v. Andrew M. Cuomo, 20-CV-4864 (S.D.N.Y.).

Corbett v. Cuomo – Complaint (.pdf)

Corbett v. Cuomo – Motion for Emergency Temporary Restraining Order (.pdf)

 

 

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