NY Supreme Court judge strikes down Gov. Hochul's mask mandate as unconstitutional



The New York Supreme Court struck down a statewide mask mandate by Democratic Gov. Hochul on the basis that such an order would need to be debated and approved by the state legislature.

Nassau County Supreme Court Judge Thomas Rademaker said in the ruling that the mask mandate was unconstitutional because neither Hochul nor state health officials were empowered to issue such a command.

"There can be no question that every person in this State wishes, wants and prays that this era of COVID ends soon and they will surely do their part to see that is accomplished," wrote Rademaker in the ruling.

"However, enacting any laws to this end is entrusted solely to the State Legislature," he continued. "While the intentions of Commissioner Bassett and Governor Hochul appear to be well aimed squarely at doing what they believe is right to protect the citizens of New York State, they must take their case to the State Legislature."

The judge made it clear in his ruling that he was not judging the "efficacy, need, or requirement of masks as a means or tool" of combatting the coronavirus, only the constitutionality of a mask mandate.

Hochul released a statement saying she would seek legal options to overturn the ruling.

"My responsibility as Governor is to protect New Yorkers throughout this public health crisis, and these measures help prevent the spread of COVID-19 and save lives," read the statement. "We strongly disagree with this ruling, and we are pursuing every option to reverse this immediately."

Republican Rep. Lee Zeldin of New York praised the decision.

"We did it! A New York State Supreme Court Judge just ruled the Hochul Administration's statewide mask mandate as unconstitutional and a violation of New York State law," read the statement.

"Honored to have fought side by side with small business owners, parents, elected officials like Nassau County Executive Bruce Blakeman and so many others in fighting for common sense, freedom, and the full science as opposed to just partial science," he added.

Hochul issued the mandate in mid-December in response to a large spike in coronavirus cases in the state.

"The overreach of this statewide mask mandate that relies on partial science rather than all of it has been very widely and adversely felt throughout New York," concluded Zeldin, who is a candidate for governor.

Here's more about the mask mandate in New York:

New York Gov. Kathy Hochul Issues New Indoor Mask Mandate For Public Spaceswww.youtube.com

Horowitz: Florida appeals court rules mask mandate is unconstitutional



In April, I wrote a column outlining the constitutional violations of mask mandates and asking why the courts have failed to abide by the line of Supreme Court cases protecting the right to bodily integrity. Well, on Friday a Florida appeals court did exactly that, perhaps in more emphatic language than a Kentucky judge last week.

Although Florida has been largely free of state-based COVID restrictions and never had a mask mandate, several counties, such as Alachua, zealously instituted unconstitutional regulations until fairly recently. In a landmark ruling on Friday, Florida's First District Court of Appeals ruled that a lower court had erred in tossing out the lawsuit against Alachua County's mask mandate because it should be held as presumptively unconstitutional.

"Based on what the supreme court has told us about the scope of article I, section 23, Green (and anyone else in Alachua County) reasonably could expect autonomy over his body, including his face, which means that he was correct to claim an entitlement to be let alone and free from intrusion by Alachua County's commission chairman," Judge Adam Scott Tanenbaum, an appointee of Gov. Ron DeSantis (R), wrote. "The mask mandate, then, implicated the right of privacy. According to Gainesville Woman Care, the mask mandate was presumptively unconstitutional as a result."

This language is very significant because it's the first time a judge is using the principle of bodily autonomy to affirm a constitutional right not to have one's breathing restricted. The lawsuit was originally brought last May by Justin Green, a Gainesville business owner, but he was denied an injunction against the mandate by Eighth Judicial Circuit Judge Donna Keim.

There are several very striking elements about this ruling, which will reverberate throughout the country even as the mask mandates officially expire. Defendants had argued that the mandate is now moot given the orders of the governor requiring all counties to end their mandates. However, the judge noted in a footnote, "Because of the nature of the various emergency orders that we have seen and the county's continued commitment to public mask wearing, we are not convinced that this is the last that we will see of this issue."

In other words, you can't have a gross violation of the most fundamental rights hanging over our heads at any time and somehow suggest that we have no recourse to eliminate it. "We conclude, then, that this case fits within the exception to the mootness doctrine, which is for controversies that are capable of repetition, yet evading review," presciently observed Judge Tanenbaum.

The judge also recognized that the pretext for these "fiats" and "diktats" is rooted in abuse of emergency powers, which can be repeated at any moment:

It would behoove the trial court also to consider that while article I, section 23 "was not intended to provide an absolute guarantee against all governmental intrusion into the private life of an individual," Fla. Bd. of Bar Exam'rs re Applicant, 443 So. 2d 71, 74 (Fla. 1983), "even in a pandemic, the Constitution cannot be put away and forgotten." Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 68 (2020). And there is this warning from William Pitt the Younger, roughly paraphrasing a similar sentiment in John Milton's Paradise Lost: "Necessity is the plea for every infringement of human freedom."

Drawing on precedent from the state's supreme court, the judge ruled that bodily autonomy is a fundamental right. What this means is that the starting point for any mask mandate must begin with the government proving that masks absolutely work and are necessary to achieve a vital state interest. "The supreme court in Gainesville Woman Care told us multiple times what this special approach means for the evidentiary burden at a temporary injunction hearing: A plaintiff does not bear a threshold evidentiary burden to establish that a law intrudes on his privacy right, and have it subjected to strict scrutiny, 'if it is evident on the face of the law that it implicates this right.'"

Also notable in this opinion is how the judge believes that the harm to plaintiffs is not just the threat of fines or denial of service.

Another consequence was being subjected to whispering informants, impelled by county-designed publicity like the following proposed signage encouraging citizens to inform on their disobedient neighbors.

The judge warned, "The threat of government-sponsored shaming was not an idle one. The chairman who issued the original mask mandate stated publicly that 'masks are the only outwardly visible signal that you are contributing to the solution.'"

In other words, this line of reasoning will give plaintiffs throughout the country a continued cause of action to fight both the mask mandate and the vaccine mandate. Both of them violate bodily autonomy and use public shaming to coerce people to violate their autonomy. According to this ruling, any edict requiring masking for those not vaccinated would also violate the Constitution.

The next step for those seeking judicial relief would be a victory in federal court. It happens that the only lawsuit against the CDC mask mandate on public transportation, including airplanes, is in the U.S. District Court for the Middle District of Florida. Lucas Wall, a plaintiff from D.C., is suing the TSA, the CDC, and other federal agencies in federal court because he was prevented from traveling without a mask and is now stuck in Florida. The well-written and researched complaint accuses the government of violating fundamental rights, usurping legislative power, and providing no data that any of the policies are effective.

It's also possible that Gov. Ron DeSantis' lawsuit (also brought in the Middle District of Florida) against the CDC's mandates on cruise liners could result in the collapse of the entire federal mandate, including on airplanes. During oral arguments last Thursday, U.S. District Court Judge Steven Merryday observed that the CDC's own study showed that masks were "barely statistically significant" in stopping the spread of COVID-19. "Where does this mask efficacy theory come from?" Merryday said. "We've had masking and social distancing for a long time and we had a pandemic in the middle of it."

Throughout the hearing, the judge seemed to oppose the entire premise that non-pharmaceutical interventions work against the virus, possibly opening the door for a very broad ruling against mask mandates, a ruling he promised "soon."

At this pace, perhaps it's a good thing for some of the mandates to remain in place just long enough to get standing to sue against them. For if we fail to destroy this ill-gotten government power while it's unpopular, it will surely rear its ugly head next flu season.

Horowitz: KY judge rules Gov. Beshear’s COVID, mask orders unconstitutional in breakthrough lawsuit



It took 15 months for a judge to finally apply the Constitution against the most severe and arbitrary violations of our most basic civil liberties, but it's better late than never.

On Tuesday, Boone County, Kentucky, Circuit Judge Richard A. Brueggemann issued a permanent injunction against all of Gov. Andy Beshear's COVID restrictions, including the mask mandate. Unlike the few judicial victories for civil liberties over the past year, this one was broad and sweeping, as it declared these mandates unconstitutional. In granting declaratory relief to a store owner who didn't want to enforce masks on customers, Judge Brueggemann ruled that "all emergency orders imposed by said Defendants, or that are being continued by said Defendants, are unconstitutional, void and without any legal effect."

Although Gov. Beshear planned to let the mask mandate expire on Friday anyway, this ruling is still significant because it finally lays down the marker that such mandates are unconstitutional headed forward. The problem champions of civil liberties have had in recent weeks is that, with expiring mandates, many of the lawsuits were dismissed as moot, denying them the opportunity to prevent such restrictions form being implemented in the future, say, for the flu season.

It was somewhat defensible for judges to give leeway for the 15 days or so of the pandemic last March, but shortly thereafter, it became apparent that the situation was no longer emergent and that the restrictions netted absolutely no results in slowing the pandemic. As such, at some point, judges should have held hearings on the facts and evidence behind mask mandates and other restrictions and subjected them to an interest balancing test against the fundamental rights those restrictions infringed upon. The rights to bodily integrity and free movement have long been held as the most grounded fundamental rights that require strict scrutiny of any attempted state-imposed restriction on them.

Judge Brueggemann has done just that. In this lawsuit, a restaurant owner, backed by state legislators and the state's attorney general, claimed that the mask mandate, social distancing, capacity limitations, and time limitations for serving customers served absolutely no purpose but harming the businesses without keeping anyone safer. They also claimed that the governor violated newly passed legislation (enacted over the governor's veto), which limited his emergency powers to 30 days and prevented him from placing restrictions on businesses. For the first time, this judge actually listened to expert testimony showing that non-pharmaceutical interventions netted zero results in stopping the virus, and he ruled accordingly.

The defendants presented evidence from senior certified industrial hygienist Stephen Petty, one of the top experts in the country on exposure to hazardous materials, who served as an expert witness in approximately 400 cases relating to toxic or infectious exposure. Petty first made his national foray into the COVID mask debate on my podcast three months ago.

"He testified that both the six-foot-distancing rule, and mask mandates, are wholly ineffective at reducing the spread of this virus," wrote Judge Brueggemann in summing up Petty's testimony. "Masks are worthless, he explained, because they are not capable of filtering anything as small as Covid-19 aerosols. In addition, masks are not respirators and lack the limited protections that respirators can provide."

"The Court finds the opinions expressed by Mr. Petty firmly established in logic," concluded the judge. "The inescapable conclusion from his testimony is that ordering masks to stop Covid-19 is like putting up chain-link fencing to keep out mosquitos. The six-foot-distancing requirements fare no better."

Moreover, the judge ruled that all of the data from neighboring states with fewer restrictions demonstrate that none of these restrictions have made a difference in the natural progression of the virus, and therefore, "the data comparison demonstrate there to be no emergency justification for continuing Governor Beshear's orders."

The judge also questioned the use of PCR testing as the primary means for denying people their liberties, especially given that the CDC now has a different standard of cycle thresholds for those who are vaccinated.

This invites many questions, such as why Ct values in Covid tests should differ based upon whether or not the individual being tested has been vaccinated; and, why a federal government agency has ordered labs to 'not include Ct values on laboratory reports . . . to inform patient management,' even though the CDC indicates that PCR Ct values should be ≤28. These are important questions. Case counts have been the poster child for the need to deprive people of their liberty.

While much of the lawsuit stemmed from the fact that the governor ignored specific bills passed by the legislature, and some states did not pass these laws, this ruling still creates the foundation for broad constitutional lawsuits against the remaining federal mandates on airplanes. This ruling establishes the fact that mask mandates can no longer withstand even a rational basis test, much less intermediate or strict scrutiny.

Aside from constitutional challenges, this ruling also forms a solid foundation for challenging these edicts – both at the federal and state levels – on grounds that they are circumventing the legislative process. The judge noted that "what has been ordered by the Governor's emergency decrees constitute Legislation," a charge that really applies to both the CDC and state governments.

Dr. Stack's testimony demonstrates that he and others engage in a process of collaboration and review of CDC guidelines and other documents, the purpose of which is to impose rules on persons and businesses in Kentucky, and that in formulating these rules they tailor them to apply uniformly across the Commonwealth. This is formulating policy. He further testified that they have repeatedly amended and revised their orders, thus showing they deem to have the power to make laws and alter them at discretion. Indeed, he described the orders imposed as having a "breathtaking scope."

It is obvious from even a cursory review that the orders issued over the past fifteen months "attempt to control" and seek "to form and determine future rights and duties" of Kentucky citizens.

Judge Brueggemann then addresses the unilateral imposition of a mask mandate by the executive branch:

These are, undeniably, attempts to control, set policy, and determine rights and duties of the citizenry. Except in those instances where the federal courts have stepped in, Defendants assert authority to modify or re-impose these orders at their sole discretion. Consider, for example, the recent modification of the mask mandate. It orders persons who did not get vaccinated for Covid-19 to wear masks but lifts that requirement for others. That is setting policy and determining future rights and duties.

Again, this charge should apply to the CDC and TSA requiring such a draconian change to one's life without Congress enacting it (even if it were constitutional).

The lawsuit is also important in setting the standard for suing against the vaccine mandates or requirement that people wear masks unless they are vaccinated. The notion that one who is not vaccinated is a threat to one who is vaccinated is even more illogical and could not pass even a rational basis test.

We cannot afford to shy away from lawsuits and let the issue become moot even if the airplane mask mandate and vaccine mandates were ultimately dropped. The genie of wielding executive power over bodily integrity under the guise of emergency powers will not be placed back into the bottle. CNN already published an article yesterday warning without any evidence of a "doozy" of a flu season this year and how mask-wearing will help to stop it. Fauci and others have hinted at mask-wearing for the flu becoming commonplace. We must learn the lessons of the past 15 months today and begin inoculating ourselves against future tyranny now.

What the people have endured over the past fifteen months—to borrow a phrase from United States District Judge Justin R. Walker —"is something this Court never expected to see outside the pages of a dystopian novel," concluded Judge Brueggemann. "Yet, Defendants contend that the Governor's rule by mere emergency decree must continue indefinitely, and independent of legislative limits. In effect, Defendants seek declaratory judgment that the Constitution provides this broad power so long as he utters the word, "emergency." It does not. For this Court to accept Defendant's position would not be honoring its oath to support the Constitution; it would be tantamount to a coup d 'état against it.