Lawsuit challenges Cuomo’s COVID-19 orders

Amherst attorney claims unconstitutional abuse of power in how governor has responded to pandemic

A Buffalo-area attorney has filed a legal challenge to Gov. Andrew Cuomo’s use of executive powers to fight the COVID-19 pandemic, terming his actions a “disturbing and gross abuse” of authority.

Corey Hogan contends Cuomo has exceeded the powers granted a governor under state law to issue executive orders. His federal lawsuit, filed Wednesday in the Western District Court in Buffalo, further contends that Cuomo’s actions run afoul of both the state and federal constitutions.

The lawsuit takes aim at the powers used by governors across the nation to employ core strategies to address COVID-19, including orders to shelter in place and close non-essential businesses. 

“This singular, authoritarian-type governance is occurring, in one form or another, throughout the United States, as governors across the country have issued similar Executive Orders limiting the operations of small businesses or shutting such businesses down completely, beyond the scope of their rightful authority,” Hogan said in a cover letter to the lawsuit.

Hogan said his firm has been singled out by state Attorney General Letitia James, who is named as a co-defendant. 

HoganWillig is one of the region’s larger law firms, employing about 35 attorneys in five offices, including its headquarters in Amherst. Law firms are not considered an essential business under Cuomo’s order, but HoganWillig obtained permission from Empire State Development to remain open. Hogan said the firm has taken recommended steps to ensure the safety of employees and clients. Yet, the suit claims, the attorney general has threatened to issue a cease-and-desist order seeking additional changes in its operation.

“HoganWillig has been threatened with fines and penalties for continuing to operate its business,” according to the suit.


Heaney discusses the lawsuit on WBEN


The lawsuit tackles larger legal issues involving the 26 executive orders Cuomo has issued since March. (In addition, the governor has changed 262 laws and regulations, according to the Albany Times Union.)

The 51-page complaint contends Cuomo has overstepped his legal authority. Instead of issuing executive orders, the suit argues he should have convened the state Legislature to determine the state’s response to the pandemic and then executed that plan.

“Per the New York State Constitution, the separation of powers ‘requires that the Legislature make the critical policy decisions, while the executive branch’s responsibility is to implement those policies,’ ” according to the suit.

“The Governor is not a Czar. He is not a king.” 

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While not part of the lawsuit, Hogan told Investigative Post on Saturday that he questions the legality of executive orders issued locally by Erie County Executive Mark Poloncarz and Buffalo Mayor Byron Brown.

“They’re suspect,” he said.

The suit finds fault with the result of Cuomo’s directives, saying they have “caused significant physical, mental, and emotional issues” for residents and “had a profoundly disastrous impact upon the New York State economy.”

The suit also contends that Cuomo should have moved to ease restrictions as the pandemic lessened. Cuomo’s actions since the middle of April “infringe on the rights and liberties of the governed,” according to the suit.

The governor has taken steps in recent days to begin opening up five regions of the state, although not Western New York or New York City.

The pandemic has killed some 22,000 New Yorkers, including 507 here in Western New York. Cuomo has maintained that without his orders, the death count would be much higher, and the consensus among scientists and health professionals is that social distancing and business closures have been necessary.


Heaney discusses the lawsuit on Capitol Pressroom


In perhaps its most provocative claim, the suit contends the state has faced worse calamities than COVID-19, including “diseases more contagious and detrimental to the public welfare than the one we countenance today.”

Accordingly, Cuomo’s orders were unnecessary, the suit contends.

“Had the public gone about its business as usual, there is not a single reason to believe that there would be a need for commercial lockdowns or home isolation orders,” the suit said.

The case has been assigned to Western District Judge John Sinatra. No initial hearing date has been scheduled. 

Cuomo’s press office did not respond to a request for comment.

Hogan told Investigative Post: “We’ve heard from a lot of people, a lot of businesses, who have expressed a lot of support.”