Page v. Cuomo

478 F.Supp.3d 355

Cynthia PAGE, Plaintiff,

v.Andrew CUOMO, in his official capacity as Governor of the State of New York, and Howard A. Zucker, in his official capacity as Commissioner, Department of Health of the State of New York, Defendants.

1:20-CV-732

United States District Court, N.D. New York.

August 11, 2020

OF COUNSEL: DAVID E. YERUSHALMI, ESQ., AMERICAN FREEDOM LAW CENTER, Attorneys for Plaintiff, 383 Kingston Avenue, Suite 103, Brooklyn, NY 11213.

HON. LETITIA A. JAMES, New York State Attorney General, OF COUNSEL: SHANNAN C. KRASNOKUTSKI, ESQ., Ass't Attorney General, Attorneys for Defendants, The Capitol, Albany, NY 12224.

MEMORANDUM–DECISION and ORDER

DAVID N. HURD, United States District Judge

I. INTRODUCTION

On July 1, 2020, plaintiff Cynthia Page ("Page" or "plaintiff") filed this official-capacity 42 U.S.C. § 1983 action against defendants New York State Governor Andrew Cuomo ("Governor Cuomo") and New York State Health Commissioner Howard A. Zucker ("Health Commissioner Zucker") (collectively "defendants") seeking a declaration that Executive Order 205, which imposes a self-quarantine requirement on certain persons traveling to New York State, violates her constitutional right to travel.

On July 9, 2020, Page moved under Federal Rule of Civil Procedure ("Rule") 65 seeking to preliminarily enjoin defendants’ continued enforcement of the challenged Executive Order. Defendants, for their part, oppose plaintiff's request for injunctive relief and have cross-moved under Rule 12(b)(6) to dismiss the complaint in its entirety.

The motions have been fully briefed and oral argument was heard by video on August 6, 2020 from Utica, New York. Decision was reserved.

II. BACKGROUND ¹

On June 24, 2020, Governor Cuomo issued Executive Order 205, the latest in a string of emergency actions taken by New York State in response to the ongoing COVID–19 pandemic. Compl. ¶¶ 13, 17. The Executive Order directs Health Commissioner Zucker to issue a quarantine requirement for certain travelers arriving from out of state:

All travelers entering New York from a state with a positive test rate higher than 10 per 100,000 residents, or higher than a 10% test positivity rate, over a seven day rolling average, will be required to quarantine for a period of 14 days consistent with Department of Health regulations for quarantine.

Ex. 1 to Compl. The Executive Order makes a violation of this quarantine requirement enforceable pursuant to the State's public health law. Id. The Order further provides that non-compliance may subject the violator to a civil penalty of up to $10,000. Id.

Pursuant to Executive Order 205, Health Commissioner Zucker issued "Interim Guidance for Quarantine Restrictions on Travelers Arriving in New York State Following Out of State Travel." Compl. ¶ 19. This State Department of Health ("DOH") document makes use of the virus testing and positivity rate metrics outlined in the Governor's Executive Order to identify a group of states currently experiencing "significant community spread." Ex. 2 to Compl. With a few limited exceptions, the DOH guidance requires any person traveling to New York from one of these so-called "restricted" states to self-quarantine for fourteen days. Id. The self-quarantine requirements are onerous:

• The individual must not be in public or otherwise leave the quarters that they have identified as suitable for their quarantine.

• The individual must be situated in separate quarters with a separate bathroom facility for each individual or family group. Access to a sink with soap, water, and paper towels is necessary. Cleaning supplies (e.g. household cleaning wipes, bleach) must be provided in any shared bathroom.

• The individual must have a way to self-quarantine from household members as soon as fever or other symptoms develop, in a separate room(s) with a separate door. Given that an exposed person might become ill while sleeping, the exposed person must sleep in a separate bedroom from household members.

• Food must be delivered to the person's quarters.

• Quarters must have a supply of face masks for individuals to put on if they become symptomatic.

• Garbage must be bagged and left outside for routine pick up. Special handling is not required.

• A system for temperature and symptom monitoring must be implemented to provide assessment in-place for the quarantined persons in their separate quarters.

• Nearby medical facilities must be notified, if the individual begins to experience more than mild symptoms and may require medical assistance.

• The quarters must be secure against unauthorized access.

Ex. 2 to Compl.

Page, a U.S. citizen who resides in Arizona, planned to fly to Brooklyn, New York for a couple of weeks to help her friends pack up belongings left in a house they were preparing to sell. Compl. ¶¶ 12, 27. However, just as plaintiff was about to purchase a plane ticket for her two-week trip to New York, Governor Cuomo issued Executive Order 205. Id. ¶ 31.

Page does not have COVID–19, and has not been exposed to anyone with symptoms of COVID–19. Page Decl., Dkt. No. 7-4 ¶ 18. However, because Arizona was (and still is) on the list of "restricted states," plaintiff canceled her plans. Compl. ¶¶ 26, 31. Plaintiff alleges that the Executive Order and resulting DOH guidance have made the trip impossible—due to work and family obligations, she is unable to extend her stay to account for the self-quarantine requirement. Id. ¶ 32.

Page alleges that this "was and continues to be very upsetting." Compl. ¶ 32. As plaintiff explains, she was "excited to go to New York," and believes this was her "last chance to see the sights of New York City with [her friends]." Id. ¶¶ 29-30. To make matters worse, no one else is available to help pack up the home in question and therefore her friend's moving plans are on an indefinite hold. Id. ¶¶ 31, 33.

Page alleges the self-quarantine requirement imposed by Executive Order 205 and the DOH guidance is arbitrary, capricious, and irrational. Compl. ¶ 34. In plaintiff's view, the State's restrictions impose "the equivalent of a house arrest" on incoming travelers without requiring any showing that the traveler "actually has COVID–19 or was exposed to someone who has COVID–19." Id. ¶ 22. According to plaintiff, a perfectly healthy person from a "restricted state" cannot travel to and within New York, but an actively sick person from an unrestricted state can come right in and move about freely. Id. ¶ 34.

III. DISCUSSION ²

Page's three-count complaint alleges that the self-quarantine requirement imposed by Executive Order 205 violates her right to travel freely between states, a fundamental liberty interest protected by the Equal Protection Clause (Count One), the citizenship clauses of the Fourteenth Amendment and Article IV (Count Two), and the Due Process Clause (Count Three).

In Page's view, the COVID–19 pandemic does not justify a departure from, or modification to, the constitutional analysis that applies to state action that burdens or restricts a fundamental constitutional right. Pl.’s Mem., Dkt. No. 7-3 at 7-9.³ Although plaintiff acknowledges that defendants might have "a compelling interest in preventing the spread of COVID–19," she maintains that the "challenged restriction is not narrowly tailored to achieve that interest." Id. at 18.

As Page explains, Executive Order 205 forces a perfectly healthy person who flies in from Arizona (or any other "restricted" state) to face a fourteen-day quarantine but would permit even an actively sick person from New Jersey (or any other "unrestricted" state) to travel freely within and around the State. Pl.’s Mem. at 18-19. According to plaintiff, the travel restriction "is so woefully underinclusive as to render belief in [its stated] purpose a challenge to the credulous." Id. at 19 (quoting Republican Party v. White , 536 U.S. 765, 780, 122 S.Ct. 2528, 153 L.Ed.2d 694 (2002) ).

Defendants respond that the Executive Order is constitutional "under the deferential standard that applies to governmental measures designed to address an ongoing public health emergency." Defs.’ Opp'n, Dkt. No. 11-31 at 7-8. In defendants’ view, governing Supreme Court precedent "expressly recognizes the inapplicability of strict scrutiny when reviewing government action taken in response to an emergency, such as a worldwide pandemic." Id. at 12.

As defendants explain, in Jacobson v. Massachusetts , 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643 (1905), the Supreme Court set out a "separate standard for evaluating constitutional challenges to state action designed to combat an epidemic" that is "far more deferential to the state than the principles that would control in ordinary times." Def.’s Opp'n at 12. Instead of the compelling interest and narrow tailoring burdens that are ordinarily imposed on a state by the strict scrutiny analysis, Jacobson asks whether the challenged measure bears some "real or substantial relation" to protecting public health, and examines whether the measure is "beyond all question, a plain, palpable invasion" of fundamental constitutional rights. Id. at 12-13 (quoting Jacobson , 197 U.S. at 31, 25 S.Ct. 358 ).

In reply, Page rejects the notion that Jacobson "creates a different constitutional standard of review." Pl.’s Reply, Dkt. No. 15 at 9-10. Plaintiff emphasizes that, contrary to defendants’ assertion, "circuit and district courts across the country are not of one mind on the application of Jacobson ." Id. at 11. According to plaintiff, even under Jacobson the reviewing court must "address the question whether the quarantine order is a plain and palpable invasion of the fundamental law." Id. at 12. Plaintiff asserts that this language from Jacobson is a clear indication that courts must continue to apply traditional means–ends scrutiny to measures that burden fundamental rights, even in times of crisis. Id. at 14-15.

A. Preliminary Injunction

The right to travel is not explicitly mentioned in the text of the...