Sup Everyone,

While I wasn’t going to do a blog entry this week, and the next one was going to be the EEOC guidance, or lack thereof, as it concerns the vaccines — I thought this was a good one to jump to the head of the line, before it spirals out of control.

Special thanks to my other unusually motivated life manager, who always finds a way to direct the endless energy here at Miletti Law and keeps me focused on a goal. She had brought this to my attention on Wednesday, so naturally—within 35 seconds the decision was made to go into all the nooks and crannies and start blogging!

Okay, so let’s begin.

First and foremost, I simply cannot help but be both heated and disgusted every single time I read anything coming from the Emperors Ministry of Truth. This man, for lack of a better word, is just such trash—such a piece of pure garbage, and I wish there was a way I could just spit in his face.

I’d be totally fine with the weekend in jail for that—I’m sure you all would have a GoFundMe within 3 seconds to get me out.

So if you haven’t heard, there is a well bearded man, who owns a gym in Buffalo, named Athletes Unleashed. In November, the shutdown orders were commanded by the Emperor, and Mr. Robby Dinero, owner of Athletes Unleashed, refused to close. Erie County authorities visited the location, demand he shut down, and they were pushed out by Mr. Dinero and gym members. After a couple of days, the Erie County Health Department fined Mr. Dinero $15,000. Mr. Dinero went on live television, refused to pay the fine, and tore it up. Afterwards, Athletes Unleased filed its lawsuit against the Emperor and his Ministry of Health.  They also moved for injunctive relief, to put a stick in the Emperors gears.

In short, should you not want to read the below—while the Court only ruled on injunctive relief, it did set a precedent for others who want to challenge the Emperors might.  Now in any other normal world and country, the Emperor would say to himself “hmm… rather than force all of my residents to jump through hoops just to reopen without capacity restrictions, let me not be a scumbag and rid myself of this restriction…” but alas, not this scumbag.

(Cuomo Rocking The “Scumbag Steve” hat, matching the nipple rings and violate me face this guy has)

Background.

On 11/30/20 Athletes Unleashed, Inc. (“AUI”) filed a verified petition in the Supreme Court of New York, County of Erie, Case No. 815246/2020 (“Complaint”), against Andrew M. Cuomo, the New York Department of Health (“DOH”) and the Empire State Development Corp. (“ESDC”), collectively “Defendants” (I’d much rather say “dickheads” but I should be somewhat professional here—this is a fucking legal website), alleging:

  • Executive Order (EO) 202.6, 202.57 and 202.68 are in violation of Exec. Law Sec. 29-a;
  • DOH Guidance has expired as a result of the invalidation of EO 202.57;
  • Color Zones and Enforcement of Guidance on Gyms, Fitness Centers, and Fitness Classes are in violation of Exec. Law Sec. 29-a(2)(a);
  • ESDC’s Designation of Non-Essential Business is in Violation of Executive Law 29-a(2)(a));
  • Executive Law 29-a(2)(a) is Unconstitutional as Applied;
  • Executive Law 29-a is Facially Unconstitutional;
  • Executive Order 202.68 Unconstitutional Under the Equal Protection Clause and Corresponding Provision of the New York State Constitution; and
  • Executive Order 202.68 is Arbitrary and Capricious

I’m chomping at the bit here—so let’s get down to it.

POINT 1.

THE FIRST 4 CAUSES OF ACTION ARE ALL PREDICATED OFF THE FACT THAT THE EMPEROR HAS Exceeded the 30 day period and as such, 202.6, 202.57 and 202.68 are in direct violation of Executive Law 29-a(2)(a).

According to the Complaint, under Executive Law 29-a(2)(a), the Emperor is empowered to issue (i) directives and (ii) suspensions of existing law for a period of 30 days. While he is further empowered to extend suspensions for an additional 30 days, there exists no authority for him to similarly extend directives.

YES!!!! YESS FUCKING YES!!! This is about time. I’ve been saying this from DAY 1. That is NOT what Executive Law 29-a permits. The Emperor is NOT allowed to extend these things for beyond 30 days, and as such, off the bat, it is invalid.

Off the bat, if the directives under 202.6, 202.57 and 202.68 are invalid, then everything else falls under it.

POINT II.

THE EMPEROR IS NOT PERMITTED TO MAKE NEW LAWS. COLOR ZONES ARE A DIRECTIVE, EQUIVALENT OF NEW LAW. NOT PERMITTED!!

The portion of EO 202.68 establishing the Color Zones is a directive, equivalent to new law, and not a suspension or modification of an existing law. Under Executive Law § 29a(2) – (2a), the Emperor is only empowered to make directives and suspensions for a period of 30 days. While the Governor is further empowered to extend suspensions for additional 30 day periods, there exists no authority for him to extend directives.

BIG IDEA. The first 4 causes of action are all predicated on the fact that the Emperor exceeded his statutory authority, as the suspensions went beyond 30 days without proper authority, as he continuously promoted directives afterwards.

The 5th Cause of Action is based off this concept as well—the concept that:

POINT III.

HIS DIRECTIVES ARE THE SAME AS NEW LAWS, AS THEY ARE NOT SUSPENSIONS, AND HE IS USURPING THE LEGISLATIVE POWER.

Directives are essentially new laws, not suspensions. When it concerns a directive, or a new law, Article III of the State Constitution states that “the legislative power of this State shall be vested in the Senate and Assembly.”

As the EMPEROR has been issuing directives, and essentially legislating, each time he issues a directive that exceeds the 30 day limitation placed on his authority, even though he has no authority to legislate. That authority rests solely with the Senate and Assembly.

The way the Emperor has been using, and the way the Court has been interpreting, Executive Law 29a, there has been a total detachment of the constitutional framework of the State Government, and it allows the Emperor to issue directives he is not otherwise permitted to issue!

POINT IV.

THE ESTABLISHMENT OF COLOR ZONES FLY IN THE FACE OF EQUAL PROTECTION, AND ARE NOT EVEN GROUNDED IN GOOD SCIENCE OR MEDICAL DATA, AS SUCH, IT IS ARBITRARY AND CAPRICIOUS. 

Simply put, and this has been the argument from Day 1 – and let this sink in… there are NO VALID OR sound scientific or medical rationale for prohibiting gyms, fitness centers, and fitness classes from operating while allowing supermarkets, malls, and other businesses with large numbers of customers from operating.

All, and I repeat.. ALL scientific evidence concludes that healthy and active people are less susceptible to experiencing severe health consequences as the result of a COVID-19 infection.

There is not ONE SINGLE PEICE OF EVIDENCE TO SUGGEST, EVER IN ALL OF HISTORY, THAT HEALTHY AND ACTIVE PEOPLE ARE UNDER ANY PARTICULAR OR UNIQUE RISK.

This was absolute bullshit and the very basis of what it means to be arbitrary and capricious.

Scumbag Cuomo’s Legal Response.

I’m going to sum this up, because this gave me COVID just reading this bullshit.

COVID-19 has resulted in 1.6m people dead in the world. 34,500 New Yorkers have died due to COVID[1]. After declaring a state of emergency under Exec. Law §28, the Emperor can do as he desires under Exec. Law §29. Exec. Law §29a authorizes the Emperor to temporarily suspend any “statute, local law, ordinance, orders, rules, or regulations, or parts thereof, of any agency… if compliance with such provisions would prevent, hinder, or delay action necessary to cope with the disaster.” Exec. Law § 29a.

The Emperor states that by Amendment, he is now permitted to issue any “directives” via Executive Order.

The Emperor argues that this new amendment (1) is temporary and will sunset on 4/30/2021, after which time, unless renewed by the Legislature, the law will revert to the prior version of Section 29a (which has express provisions only for the suspension of laws); (2) the directives issued pursuant to Exec. Law § 29a “must be necessary[2] to cope with the disaster,” and no directive shall be made “which is not in the interest of the health or welfare of the public and which is not reasonably necessary to aid the disaster effort”; (3) they have a 30 day shelf life; and (4) they may be terminated at any time by the legislature.

The Emperor then goes into the specific reasons for the gyms continued restrictions. Simply put, they argued that (a) forced exhalations and droplets, (b) the sharing of equipment, (c) the difficulties of mask wearing, and (d) the duration of the average visit (1 hour), make them high risk.

** NOTE – Never mind (a) masks do not do anything to reduce the effect of forced exhalation, (b) people wipe down stations between sets in a gym, and gyms actually have disinfecting wipes, and (c) it takes me longer to walk through Costco than it takes me to get a work out in. Also note that suddenly, it is difficult to wear a mask. I thought masks were easy—isn’t that what Cuomo says all the time? Isn’t that what the amusement parks say when they require you to wear them in amusement parks?

The Emperor spoke of Clusters, that it was just a response to the infection rate of neighborhoods. Never mind the damage it does to the local economy, never mind the ancillary side effects such as increase in domestic violence, poverty, obesity, etc., no no no, just the numbers with no consideration of the impact. Right.

Scumbag Cuomo’s Legal Position.

Injunctive relief is a “drastic remedy” and only when preventing irreparable harm.

NOTE: we will just ignore the Supreme Court saying that any constitutional infringement on an individuals first amendment right is an “irreparable harm”—but we will ignore this for now.

The Emperor took the position that his grant of power under Exec. Law Sec. 28, 29, & 29-a was proper, and that he is using his power within the proper restrictions conveyed by the legislature. He argued that he was not usurping power, but rather, he was doing the bidding of the legislature, and that this was evidenced by the particular safeguards in place (5 in total), as proffered by the legislature.

  • The Legislature made the “critical policy decision” of authorizing the Emperor to issue directives to respond to particular state disaster emergencies.
  • The Legislature imposed a time limit on the delegation itself—expiring on 4/2021.
  • The Emperors power is only during a disaster emergency (of course, which he himself determines); such emergencies may only be declared for periods not to exceed 6 months and must be specifically renewed by the Emperor.
  • Directives are to last 30 days.
  • Finally, the legislature could terminate the executive orders.

His argument here is basically that as there were proper safeguards in place, there is no way that this could be outside of the bounds of bicameralism, and that the Emperor is acting perfectly in line with the constitutionally prescribed system.

A very interesting argument made by the Emperor was his comment that he NEEDED to take these powers since the State Legislature is part-time, is in recess in June, and even when in session, meets only on certain days. The Legislature may be called to extraordinary session (N.Y. Const. Art. III, § 2), in rare instances.

Umm… wouldn’t a “global pandemic, which has ravaged the world at whirlwind speeds” be that extraordinary reason to have a session? Just saying… this is their language in their opposition brief…

They also say that the “Legislature has no provision for remote voting.”  I don’t get this… so if they stay shut down for a year—because of something dangerous in the building, does this mean they just don’t work?

Attacking the 5 Legal Points.

The Emperor argued that as he was working within proper safeguards, and there can be no discussion that he is acting in any way unconstitutionally. AUI responded by pointing out how the Emperor is in fact working through those safeguards, violating them along the way, and that’s why Exec. Law Sec. 29 has failed the entire time. The responses proffered by AUI were as followed:

  • The statutory text is the clearest indicator for legislative intent—and it is clear there is a 30 day time limit.
  • The Legislature expressly excluded directives from the Emperor’s extension of authority.
  • The fact that Exec. Law Sec. 29 is only permissible in a state of emergency begs the question as the EMPEROR is the ONLY ONE who declares a state of emergency in NYC. So how impartial is that?
  • Certainly, there is no authority that supports such long lasting control to the Emperor. States, in the alternative, have actually restricted such powers.
  • “An action is arbitrary and capricious when it is taken without sound basis in reason or regard to the facts,” i.e. when it is not “supported by a rational basis.” Something that is “reasonably necessary” in its nature, is not arbitrary and capricious. Something that is reasonably necessary is higher than “arbitrary and capricious.” If the restrictions can’t survive an “arbitrary and capricious standard” they certainly cannot support a “reasonable necessary” standard.

Finally, the justification cited by the Emperors team is woefully pathetic (much like his life):

“Respondents merely offer four articles from around the world that “associated” fitness classes with COVID-19 cases. (See Doc No. 25 at 9[9[ 93, 103, 104, 105.) However, Respondents fail to state whether these fitness classes were following protocols similar to the NYSDOH guidance at the time they were linked to COVID-19 transmissions, as they needed to do to justify the additional Orange Zone restrictions. Moreover, a careful reading of these articles shows many of these transmissions did not occur inside gyms, but were merely “connected” to people that attended gyms. (See Doc. No. 70). Respondents even attempt to blame a 44-person infection chain on the fact that a single individual initially contracted COVID-19 in a gym. (Doc. No. 69.) However, Respondents’ attempt to blame gyms for all 44 infections ignores the fact that this individual subsequently transmitted the virus to the other 43 people outside of a gym.”

RULING.

Athletes Unleashed – 1; Scumbag Cuomo – 0.

In conclusion, the Court ruled in favor of the preliminary injunction to remain open without restrictions.  Athletes Unleased may now be allowed to open at 100% capacity.  While the judge decided they will argue the merits in February 2021, they did make an appeal to “normalcy.”

While I am still waiting for the transcript and holding to be published, I want to be a clear about a few things.

  • Until the Supreme Court comes down and makes the connection between the two following concepts, which are both Supreme Court rulings… (a) a person has a fundamental right to be in possession and control of his or her own person, free from all restraint and interference, unless by clear and unquestionable authority if law (this includes the right to work, the right to earn a living, the right to walk freely and unobstructed), and (b) the loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.”
  • There will always be some tension—before the Emperor is actually checked, it will need to be this level type of clear to get through this thick skull.
  • Every little win will ultimately build up into a solid body of case law that can be used over and over again to knock these sorts of things down.
  • This particular holding said nothing as to the constitutionality of the rules and orders, but rather, spoke of simply the injunctive relief for this particular establishment. While it is pathetic, and if the Tricky Little DICtator had any class, he would simply stop with the nonsense, I guarantee you the Emperor will continue to push his nonsense as more and more people will have to sue to get this kind of relief.

So while we won the battle today, the war rages on… and we keep pushing. Especially when you have jerks like this in control…