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Cuomo may ease 'orange zone' restrictions, but lawyers got there first

The Buffalo News
January 26, 2021

Gov. Andrew Cuomo is expected to roll back some of the highly restrictive "orange zone" designations that have been in place in Erie County since November. But frustrated local businesses and athletic organizations haven't been waiting on Cuomo's goodwill.

They've been suing him – and winning.

A recent series of local suits coming before both Democratic and Republican State Supreme Court judges have either led to temporary restraining orders and preliminary injunctions barring enforcement of the governor's Covid-19 restrictions, or the suits have been quickly followed by the state loosening restrictions while legal challenges were still pending.

When the orange zone originally shuttered or further restricted "high-risk" nonessential businesses and activities, businesses and organizations sought legal remedies. Everything from the restoration of indoor dining in Erie County to the allowance of locally promoted musical acts and beauty salon reopenings has been preceded by local legal challenges.

"It's not a coincidence," said Paul Cambria, a local criminal defense and constitutional law attorney who has successfully won initial rulings on all four lawsuits he's filed on behalf of different businesses.

The lawsuit seeks a temporary restraining order as well as an injunction from the court that would prevent the state from enforcing the restriction.

When most of Erie County was moved into an orange zone in November, the county was seeing a huge surge in positive cases and rising hospitalization levels. It met the state's technical thresholds for being labeled an orange zone. But as it became clear that rising Covid-19 infection levels would engulf many other regions across the state, the governor was slow to tag other regions with orange zone – or even yellow zone – designations.

This uneven application of the state's microcluster designation system became a main foundation for a series of lawsuits, which have curbed the governor's executive authority during the Covid-19 public health crisis.

"There’s no question in my mind that if these lawsuits hadn’t been filed, these hair salons would still be closed down and these restaurants would still be dealing with take out and outdoor dining in January," said Corey Hogan, founder of the HoganWillig law firm.

HoganWillig has pursued more than a half-dozen lawsuits fighting the state's stringent restrictions since March. It filed suit against the state in December for keeping hair salons closed. Within 24 hours, the state announced it was allowing salons to reopen for business, Hogan said.

That same month, HoganWillig and Cambria won preliminary injunctions allowing 91 Erie County restaurants to reopen for indoor dining under less-restrictive yellow zone requirements. In the face of that judgment, the state allowed all county restaurants in the orange zone to reopen under the same conditions.

Local scholastic coaches and players were equally stunned and thrilled that their dark winter season could come back to life, pending approval from area health officials.

Last week, HoganWillig livestreamed a press conference regarding its latest suit against the state's suspension of "high risk" sports. The state announced the loosening of those restrictions 47 minutes later, said James Minner, the firm's director of media relations and constitutional law case manager.

A state spokesman responded Tuesday that the state's restrictions have been driven "purely by science and data."

"As the Governor said, choosing between public health and the economy is a false choice – the answer is both – and as the data changes, we will adjust our actions accordingly to allow the most economic activity to proceed in the safest way possible," said First Deputy Press Secretary Will Burns in an emailed statement.

Burns then listed nine cases in which the state won decisions in suits attempting to lift the governor's mandates, including one filed by HoganWillig early last year.

Erie County Executive Mark Poloncarz also referenced State Supreme Court Justice Dennis Ward's ruling against HoganWillig's request to grant a temporary restraining order to hair salons that must currently have employees tested every two weeks for Covid-19.

Owners of fitness facilities across the area hope a judge's ruling in favor of an Orchard Park gym will lead to relaxed restrictions for them, too.

Regarding other successful legal challenges, Poloncarz said he believed that local judges were allowing politics to influence their decisions, though initial rulings against the state have been made by judges of both parties.

"As much as State Supreme Court judges are judges, they're all political beasts, and they all want to get re-elected," he said.

He predicted that some cases would be overturned on appeal.

That position was echoed by Burns, who said that the recent local victories are still making their way through the legal process.

Cambria and Hogan said Poloncarz is out of his league when it comes to these types of cases, which have had favorable outcomes based on arguments that the state's restrictions are arbitrary and capricious or violate other constitutional provisions, such as First Amendment grounds.

"He is speaking volumes to how out of touch he is with the state of the law these days," said Cambria, who has successfully filed suit on behalf of a strip club, a restaurant, a live music venue and a gym.

The law firms that have successfully represented businesses and organizations against the state said that the groups they represent have repeatedly and unsuccessfully tried to lobby the state for a relaxation of restrictions, only to be rebuffed.

Lawsuits that have been successful in recent months do not argue that Covid-19 health safety protocols and regulations are not warranted, but rather that certain state restrictions are excessive in light of:

• The state's lack of contact-tracing evidence indicating that certain businesses are a significant cause of the transmission of the virus.

• The state's lack of consistency in applying the yellow, orange and red microcluster designation.

"Nobody’s saying let it be the wild west and pretend there’s no pandemic," Minner said.

HoganWillig and Cambria have occasionally and successfully joined forces in fighting back against state mandates, though they are far from the only lawyers locally or across the state who tried to get Cuomo's mandates lifted.

In November, the U.S. Supreme Court heard a case filed on behalf of the Roman Catholic Diocese in Brooklyn, which resulted in the court granting a preliminary injunction against the governor's mandate limiting houses of worship in microcluster zones to 10-or-25 person capacity.

HoganWillig pointed to the latest state actions to fight off their suits as a clear sign that the Cuomo administration is aggravated by the recent slew of litigation and court decisions.

When the firm filed a suit to fight the state-imposed 10 p.m. curfew for restaurants and bars, and a separate suit regarding the ability to suspend certain amateur sports such as ice hockey, the state most recently responded by moving these cases to federal court, which effectively delays a case hearing by months, Minner said.

"What they effectively did was effectively destroy our ability to win a quick decision in state court," he said.

HoganWillig has responded by dismissing their own suits, removing all federal arguments from their legal complaints and refiling both cases in State Supreme Court.

The firm refiled its 10 p.m. curfew suit in state court Tuesday and is refiling its amateur sports suit Wednesday.

The state has previously tried to nullify some of these lawsuits by voluntarily relaxing restrictions before the cases come before a judge for legal arguments. When the state allowed amateur sports leagues considered high-risk to reopen for competitive play – with some restrictions – it also argued that lawsuits filed on the matter became moot.

That state argument is likely to resurface after the governor announces a further loosening of restrictions for Erie County, which is expected to come Wednesday.

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