Recently the New York State Supreme Court granted a preliminary injunction against Governor Cuomo’s “Orange Zone” restrictions which allowed many restaurants to temporarily resume indoor dining. Another hearing will be conducted to decide whether that injunction will be permanent. The full court document detailing the ruling can be found here. This article will briefly summarize the important points of the case and also provide the original text specifically pertaining to the judge’s decision.
It is important to note that the outcomes in this case are unique to this ruling and the matter is ongoing. This article should not be construed to be an endorsement of all the arguments presented.
The petitioners, in this case, are a number of Western New York restaurants and bars that are suing the Cuomo administration for its prohibition on indoor dining. New York state has been one of the hardest-hit states in the country during the pandemic and has enacted a number of policies in an attempt to contain the virus. A recent policy is the use of “cluster zones” which split the state into districts to be monitored and regulated on a three-tiered reopening system based on a number of indicators. Cuomo designated portions of Erie County as well as other areas of the state as “Orange Zones.” NBC New York explains,
“According to Cuomo’s latest guidelines, which were last updated in mid-December, orange zone restrictions apply for areas that have seen a 4 percent positivity rate or higher for 10 straight days and the area has reached 85 percent hospital capacity or the Department of Health determines the area has an unacceptably high rate of hospital admissions.”
Areas that fall below the state’s threshold regarding positivity rates and hospital capacity can be designated as “Yellow Zones,” which have lighter restrictions.
The petitioners commenced the proceeding in accordance with article 78 of the CPLR which allows for the challenging of laws made by a New York State Official or a state body. The petitioners argued that Governor Cuomo’s powers to declare a state of emergency are unconstitutional and his powers violate the separation of powers doctrine.
They also alleged that the dining restrictions violated the takings clause of the 5th Amendment which requires compensation in the event of a seizure of property or if they affect the use of the property. The respondents also argued that the state violated the Equal Protection Clause of the 14th Amendment which prohibits discriminatory and arbitrary treatment.
Lastly, the petitioners argue that the state’s actions violated their substantive and procedural due process rights specifically alleging that the restrictions were overly arbitrary, oppressive, and did not provide time to be noticed and heard by a neutral decision-maker.
The Court’s Holding and Reasoning
The judge stated that Governor Cuomo’s emergency powers likely were constitutional and that the state was well within its means to exercise power. The ruling states,
“In the context of regulations issued by a state agency, it is well settled that “the basic policy decisions underlying the regulations have been made and articulated by the Legislature.”
In the context of state lockdown orders, it is important that governors have the blessing of their state legislatures, which Cuomo does in this case. Some governors did not and their lockdowns were declared unconstitutional. More about that can be found here.
The judge stated that the petitioners likely did not have a case under the takings clause either. That is because the takings clause only involves monetary compensation, not an injunction against the regulations in place. Furthermore, to be eligible for monetary compensation the petitioners would need to present specific and individual evidence of a government taking against them.
Under the Equal Protection Clause, the judge also stated that the petitioners likely had no case because there was no discriminatory element. All bars and restaurants are treated the same in the Orange Zone.
On the allegations regarding substantive due process, the judge wrote that there is likely no claim under this accusation as the petitioners would need to prove that the governor’s restrictions were unusually oppressive or arbitrary. Furthermore, the petitioners had no case in regards to procedural due process because
“Official action that is legislative in nature is not subject to the notice and hearing requirements of the due process clause. These constitutional due process requirements apply only where the official action is ‘designed to adjudicate disputed facts in particular cases’.”
The argument that the court found to be the most promising was that the Cuomo administration’s Microcluster strategy lacked a rational basis. The judge specifically referenced the ineffectiveness of contact tracing in providing accurate data to which the state’s council also admitted to. In order for the state to enact such restrictions there must be a rigorous link between the policy involved and the evidence. Simply enacting public health measures on questionable data such as contact tracing is not permissible. Neither is having clear rational shortcomings like Los Angeles County’s outdoor dining ban which was struck down for also failing the rational basis test.
The judge also recognized that the dining restrictions have caused irreparable harm and that halting the restrictions until the trial was over would be appropriate. For that reason and the belief that the petitioners had a strong potential to succeed based on the rational basis test, he granted a preliminary injunction against the dining ban.
The full text regarding the judge’s rationale to grant a preliminary injunction is provided below. The full document can be found here.
HON. HENRY J. NOWAK, J.S.C. Justice Presiding
Upon reviewing administrative action under CPLR Article 78, courts must uphold the administrative exercise of discretion unless it has no rational basis or is arbitrary and capricious (Krug v City of Buffalo, 34 NY3d 1094, 1096 ; Lemma v Nassau County Police Officer Indem. Bd., 31 NY3d 523, 528 ). “The arbitrary or capricious test ‘relates to whether a particular action should have been taken or is justified and whether the administrative action is without foundation in fact’ ” (Pell v Bd. of Ed. of Union Free School Dist. No. 1 of Towns of Scarsdale and Mamaroneck, Westchester County, 34 NY2d 222, 231 [1974 [internal citation omitted]).
Petitioners submitted the affirmation of Dr. Qanta A. Ahmed, a triple fellowship trained, board certified academic pulmonologist actively licensed to practice in the State of New York. Dr. Ahmed opined that the interaction of people at commercial establishments where COV1D-I9 protocols are being followed, including indoor dining, is not contributing to the spread of this disease. Despite Dr. Ahmed’s affidavit, respondents have demonstrated enhanced risks related to indoor dining. COVID-19 transmission can occur through direct, indirect, or close contact with infected people through respiratory secretions of droplets or aerosols, which are expelled when an infected people talk, laugh, cough or sneeze. Indoor dining is unique in comparison to other regulated activities during the pandemic because patrons are not able to wear masks while eating and drinking.
There is no dispute that COVID-19 positivity rates have continued to rise in Western New York. Curiously, the most significant rise documented in the record occurred after the Orange Zone designation was made. Erie County’s daily positivity rate reached 9.4 % on November 30, 2020, and the Western New York Region’s 7-day rolling average positivity rate as of January 3, 2021 was 8.4 %, with the daily positive rate for January 3, 2021 at 10.2 %.
Such figures greatly exceed metrics previously set for Red Zone designation, much less Orange Zone designation. However, the DOH clearly is not relying upon such data for their designations, as much of the Western Region has no designation at all and portions of Erie County remain in the Yellow Zone. A lack of reliance on broad based regional data was further demonstrated at oral argument, when counsel for the parties discussed inconsistent designations statewide. Nonetheless, the Micro-Cluster Strategy eschews sole reliance on broad-based regional data; zones are to be designated after consideration of contact tracing, analysis of congregate facilities and “epidemiological factors, ZIP codes and other geopolitical or other common geographic subdivisions such as county, census tracts, or contiguous neighborhoods” (NYSCEF Doc. No. 80, pp. 3-4).
Petitioners rely heavily on information provided by Governor Cuomo at a December 11, 2020 press conference, showing that only 1.43 % of COVID-19 cases are traceable to restaurants and bars. The Governor referred to the information as “probably the most informative data.” Respondents have shown that the contact tracing data relied upon by Governor Cuomo only accounted for approximately 20% of the total COVID-19 positive test results from September to November 2020, and an even smaller percentage of all positive test results maintained by the DOH. Furthermore, contact tracing data has been shown to be limited in a number of other ways.
Nora K. Yates, Director of the Center for Community Health at the DOH detailed numerous barriers to contact tracing, including privacy concerns, mistrust, apprehension, the unmet need for more information and support, fear of stigmatization, and mode-specific challenges, such as not having the appropriate devices, the ability to download an app and logistical challenges. While limitations with contract tracing casts doubt on the statistic relied upon by petitioners, it also undermines and inhibits the DOH’s ability to properly designate specific areas under MicroCluster-strategy, which is premised upon the State’s ability to identify areas of infection on a block by block basis.
Considering the record presented, this court cannot find evidence that the State had a rational basis to designate portions of Erie County as an Orange Zone on November 18, 2020. On this issue, the court find a likelihood of success on the merits. The court also finds irreparable injury to petitioners in the absence of injunctive relief, and a balance of equities in their favor (see Eastman Kodak Co. v Carmosino, 77 AD3d 1434, 1435 [4th Dept 2010]). The loss of goodwill that corresponds with a viable business is not readily quantifiable and constitutes irreparable harm warranting the grant of preliminary injunctive relief. Petitioners have also demonstrated that the Orange Zone designation has caused loss of revenue, unemployment, potential foreclosure and hardship upon Erie County residents.
The original petition was filed on December 24, 2020. On December 28, 2020, the court informally heard arguments regarding whether the court had authority to grant a temporary restraining order (TRO). After determining that the court did not have authority to grant a TRO, a briefing schedule was set and oral argument on the application for a preliminary injunction was scheduled for January 8, 2021 at 3:30 p.m. Petitioners e-filed additional papers in support of the petition on December 28, 2020. The proposed order to show cause was revised to remove the TRO and it was signed and entered on December 29, 2020. Respondents filed their opposing papers on January 6, 2021 and petitioners replied to that opposition on January 8, 2021.
Petitioners also filed an amended petition with supporting affidavits on January 8, 2021 that added additional petitioners to this proceeding. At oral argument, the respondents objected to the amended petition asserting that it was done without authority. This court must therefore address whether the relief granted herein applies only to the petitioners named in the original petition or if it also applies to the additional petitioners named in the amended petition. In making that determination, the court has considered two factors. First, the original petition and the amended petition both contain a party identified as John Doe Corp., described as “an individual (or group of) licensed bar(s) and/or restaurant(s) operating in Erie County, New York, who are fearful of retribution by and from Respondents should their identities be disclosed publicly, but who is (are) otherwise qualified to act as a Petitioner in this proceeding.” Respondents have not so far objected to the party identified as John Doe Corp. Second, respondents opposed the relief sought by all petitioners on identical grounds and have not asserted that one petitioner was any more or less deserving of the relief sought in the petition, with one exception.
For these reasons, a preliminary injunction is hereby granted. With the one noted exception, the court concludes that all parties named in the amended petition filed on January 8, 2021 (NYSCEF Doc. No. 109) are hereby permitted to operate under the prior Yellow Zone restrictions and pursuant to the DOH’s Interim COVID-19 Guidance (NYSCEF Doc. No. 2). The respondents have not, however, waived their right to move to dismiss all or part of the amended petition and have also not waived their right to oppose the relief sought by one or more of the petitioners individually based on any different facts or distinctions between or among petitioners that may be relevant. There will be a conference on January 19, 2020 at 3:30 pm, when we will also schedule a hearing on petitioners’ request for a permanent injunction.