496 F.Supp.3d 760
W.D.N.Y.2020Background
- Nine Western New York businesses (bars/restaurants, bowling, billiards, exotic-dance clubs, a martial-arts school, and an entertainment company) sued Governor Cuomo, Attorney General James, and the New York Legislature challenging COVID-19 Executive Orders issued under N.Y. Exec. L. § 29-a. Plaintiffs sought a TRO/PI, declaratory relief, and damages.
- New York declared a pandemic emergency, adopted statewide restrictions (“New York On Pause”) and a phased reopening plan (“New York Forward”), including bans/limits on indoor gatherings, certain entertainment (including exotic dancing), capacity limits, and alcohol-service rules.
- Defendants submitted a detailed public-health declaration (Dr. Elizabeth Dufort) explaining COVID-19 transmission risks, the medical basis for distancing and entertainment restrictions, and the need for temporary measures to avoid resurgence.
- Plaintiffs asserted federal claims (Guarantee Clause, First Amendment, Due Process, Takings, Equal Protection, Ninth/Tenth Amendments, Compact Clause) and state-law challenges to § 29-a and the Governor’s authority.
- The court applied the Jacobson public-health framework, denied the TRO/PI (finding plaintiffs failed to show a clear/substantial likelihood of success or strong irreparable harm), granted defendants’ motion to dismiss, but allowed leave to file a second amended complaint.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Applicability of Jacobson (standard of review) | Jacobson is outdated/should not govern COVID restrictions | Jacobson controls emergency public-health measures and requires deferential review | Jacobson applies; courts owe deference to state public-health judgments; plaintiffs must clear Jacobson’s deferential standard |
| Separation of powers / validity of §29-a | Legislature unlawfully delegated core legislative power to the Governor; §29-a unconstitutional | Legislature empowered the Governor; measures fall within state police power and statutory authority | Claim fails under Jacobson; court declines to reach state-law questions and would dismiss absent adequate repleading |
| First Amendment (ban on exotic dancing) | Prohibition targets expressive conduct (exotic dancing) and is content-based; strict scrutiny required | Ban is content-neutral, justified by transmission risks, subject to intermediate scrutiny | Regulation deemed content-neutral; intermediate scrutiny satisfied given COVID-19 risks; no likely First Amendment win |
| Substantive & Procedural Due Process | Orders are arbitrary, vague, and deprived plaintiffs of property and liberty without process | Orders are legislative, based on public-health expertise, temporary, and not arbitrary; procedural due process not triggered | Substantive due process claim fails (not conscience-shocking); procedural due process inapplicable to legislative executive orders; plaintiffs unlikely to prevail |
| Takings Clause | Restrictions effectively extinguished plaintiffs’ economic use of property, requiring compensation | Measures are temporary public-health regulations under the police power, not physical appropriations; Penn Central factors weigh against a taking | Not a categorical taking; Penn Central analysis disfavors compensable taking here; claim unlikely to succeed |
| Equal Protection / other constitutional claims (Guarantee, Compact, Ninth/Tenth) | Plaintiffs treated differently from similarly situated businesses; other constitutional violations alleged | Restrictions applied based on public-health risk; many claims nonjusticiable or inapplicable | Plaintiffs’ equal-protection allegations lack specific comparators; Guarantee/Compact/Ninth/Tenth claims fail or are non-justiciable under Jacobson and existing doctrine |
Key Cases Cited
- Jacobson v. Massachusetts, 197 U.S. 11 (1905) (establishes deferential police-power review for emergency public-health measures)
- South Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613 (2020) (federal courts should not second-guess state public-health judgments in pandemic conditions)
- In re Abbott, 954 F.3d 772 (5th Cir. 2020) (applies Jacobson to COVID-19 restrictions; emphasizes deference)
- In re Rutledge, 956 F.3d 1018 (8th Cir. 2020) (reinforces Jacobson framework for pandemic measures)
- City of Erie v. Pap’s A.M., 529 U.S. 277 (2000) (nude/exotic dancing is expressive conduct but has limited First Amendment protection)
- Ward v. Rock Against Racism, 491 U.S. 781 (1989) (content-neutral time/place/manner intermediate-scrutiny test)
- Reed v. Town of Gilbert, 576 U.S. 155 (2015) (content-based speech restrictions trigger strict scrutiny)
- Lingle v. Chevron U.S.A., Inc., 544 U.S. 528 (2005) (takings doctrine jurisprudence and limits on regulatory-takings challenges)
- Penn Central Transp. Co. v. City of N.Y., 438 U.S. 104 (1978) (multifactor test for non-categorical regulatory takings)
- Lucas v. S.C. Coastal Council, 505 U.S. 1003 (1992) (categorical taking where regulation eliminates all economically beneficial use)
- Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg'l Planning Agency, 535 U.S. 302 (2002) (temporary moratoria and takings analysis)
- Kelo v. City of New London, 545 U.S. 469 (2005) (Takings Clause applies to states; context for public-use/compensation inquiry)