This week, there have been multiple court rulings regarding New York State’s mask mandate. The first ruling was issued by a State Supreme Court judge on Monday, January 24th; the second ruling was issued by a State Appellate Court judge on Tuesday, January 25th; and oral arguments are scheduled to be made before the full Second Department of the New York State of Appeals on Friday, January 28th.
Various media outlets asked attorney Barry N. Covert provide legal analysis on the series of court rulings regarding New York State’s mask mandate. Mr. Covert’s analysis addressed several topics, including:
- The current status and potential future of New York State’s mask mandate;
- Impact recent court rulings have on Erie County’s mask mandate; and
- School districts’ ability to institute their own mask mandates, independent of state and local government.
Mask Mandate Executive Order
Early in the COVID-19 pandemic, then Governor Andrew Cuomo was granted emergency powers by the New York State Legislature. Those powers were stripped in March 2021. In December 2021, Governor Kathy Hochul issued a mask mandate via executive order.
New York State Supreme Court Rules Mask Mandate Unconstitutional
On Monday, January 24th, a New York State Supreme Court judge ruled that the state’s mask mandate is unconstitutional and violates state law. According to media reports, the judge ruled that the governor had good intentions with the mask mandate, but it was unlawfully for the executive branch to issue such an order. The ruling stated that mask mandate should have gone through the New York State Legislature instead of an executive order.
Attorney Barry Covert provided legal analysis to WGRZ Channel 2 and WIVB News 4 regarding the January 24th ruling. Mr. Covert state to WGRZ, “You can expect that the governor’s office is going to appeal this to the intermediate appellate court.” That analysis proved to be true.
Appellate Court Judge Temporarily Reinstates Mask Mandate
On the very next day, Tuesday, January 25th, the State Supreme Court decision was appealed and a New York State Appellate Court Judge granted a stay to put New York State’s mask mandate back in place until arguments could be heard before the full Second Department of the New York State of Appeals.
Barry N. Covert sat down with WIVB News 4 anchor Jacquie Walker for an in-studio interview to provide analysis on both mask mandate rulings as well as other issues related to the mask mandate. Continue reading for excerpts of Mr. Covert’s comments and click the video below to watch the full interview.
What did the State Supreme Court Judge’s initial ruling state on Monday of this week, January 24th?
BNC: The initial ruling said that it’s the job of the legislature, under our three branches of government, to enact laws. And while the legislature had given governor Cuomo previously some emergency powers, they removed those powers back in March of 2021 when he had a falling out. And this court has said now that now that the executive branch no longer had the authority given previously by the legislature, that the Executive Branch, which is the Department of Health falls within, cannot issue rules such as mask mandates. That’s a job for the legislature.
So it was a ruling more about a technicality; it wasn’t about masks and whether or not they are good or bad?
BNC: No, this judge went out of his way to say that it is important to preserve the safety of the community.
How is it possible that a judge, a State Supreme Court Justice on Long Island, can make a ruling that effects the whole state?
BNC: It is pretty broad of a power here that the judge has. There’s sixty-two different Supreme Courts, one for every county in New York State. And they are courts of the highest trial court jurisdiction and courts of general jurisdiction. The motion that was brought, the complaint that was brought, asked this court to prohibit the Executive Branch from implementing the mask mandate because it was unconstitutional. This judge held that it was indeed unconstitutional. So, at that point, where the law stands is a ruling from this Supreme Court Judge finding that the mandate was unconstitutional. That’s now the state of the law statewide.
Ok, that was the ruling on Monday. What happened on Tuesday, January 25th?
BNC: One level above a trial court, a supreme court, is the four departments’ Court of Appeals. In this case it’s the Second Department Court of Appeals, appellate division, that supervises Nassau County and other counties that come within their jurisdiction. This single judge granted a temporary stay, which says that you cannot implement the prohibition against the mask mandate. So, we have the mask mandate back until Friday, when the remainder of the second department court that’s going to listen to the case, because it will multiple judges, they’ll reconvene on Friday and have longer arguments as to whether that stay should continue after Friday.
So, right now we are back under the state mask mandate? What about Erie County’s mask mandate? Is that in effect?
BNC: That’s still in effect. That was not in any way undermined by the court’s ruling yesterday.
What about the schools? Many parents contacted WIVB. A number of them sent their kids to school and said they did not have to wear masks. Did they have to wear masks or not in school?
BNC: The state took the position that they still had to wear masks and I didn’t really understand their arguments. They claim that there’s conflicting decisions between Nassau County court and another court, I believe in the Albany area. But the state was taking the position that as to school requirements, public schools, that the mandate was still in effect. This appellate division judge, this single judge that now granted the stay until Friday, has made it clear that the mask mandate still now stays in place. The Nassau County court judge’s ruling yesterday does not take effect until at the earliest Friday. And then that could be stayed even longer.
Does a school district itself forgetting state and county government, does a school district have the ability to require masks among their children?
BNC: My understanding is that they do. Every school district can provide for the safety of their occupants, the students in this case, and that they could try to enforce their own individual school district regulations. If the schools are forced to do that individually though, we will quickly find out through court challenges as to whether they do actually have that power.
So all eyes on the court for Friday, January 28th?
BNC: Friday we may have an answer. The court may listen to oral arguments and then want time to issue a decision. So, we don’t know what’s going to happen Friday, except that there will be oral arguments before the appellate division, the second department.
