Dec 06, 2020
Controlling COVID-19: Does the Equal Protection Clause Limit What Can Be Done?
Dec 06, 2020
By DANIEL J. SCHNEIDER
As states struggle to balance the economic disaster of closed businesses against public health risks of reopening during the COVID-19 pandemic, their job is made harder because their police power is not unlimited. Whatever balance they strike must pass constitutional muster.
In New York City, restaurants were not permitted to offer indoor dining between July 6 and September 30, 2020, while those in neighboring New York counties were. During that time, the positivity rate in the City and Statewide was below one percent, meaning that the entire state would have been squarely in the yellow tier if it had been operating under the California system. New York State did not even attempt to provide a reason for the differential treatment of counties and found itself subject to constitutional challenge. The catastrophic effect was of permanent closures and likely a forever-altered New York City restaurant scene.
California has attempted to add a reasoned basis for its disparate treatment through its four-tiered county-by-county system. However, a reasoned basis alone does not automatically immunize the system from constitutional attack. Even if the rules within a county do not raise an issue, does disparate treatment of counties? Picture two restaurants across the street from each other. If that street divides counties in different tiers, allowing one restaurant to serve customers indoors and the other not to, does the worse-off restaurant have a constitutional claim? The most plausible claims rest on whether the state has exceeded its police power or violated the Equal Protection Clause of the Fourteenth Amendment to United States Constitution.
Police Power During Health Emergencies
The pandemic is not the first health emergency in this nation’s history. The leading precedent is Jacobson v. Commonwealth of Massachusetts (1905) 197 U.S. 11, where the U.S. Supreme Court declared the state’s police power to be broad: “[I]n every well-ordered society charged with the duty of conserving the safety of its members the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.” (Id. at 29.) However, the power is not limitless: If a rule “enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those objects, or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law,” then it may be held unconstitutional. (Id. at 34.) In short, according to the Court, a rule sufficiently “arbitrary and oppressive” will not pass constitutional muster. (Id. at 38.)
The U.S. Supreme Court has already weighed in more than once on the permissible scope of regulation during the current pandemic. While the Court initially gave substantial deference to state executive orders, the addition of Amy Coney Barrett to the Court has shifted the law. The Court recently enjoined enforcement of an executive order in New York that restricted occupancy at religious services pursuant to the free exercise clause of the First Amendment to the U.S. Constitution. (Roman Catholic Diocese of Brooklyn, NY v. Cuomo (No. 20A87, November 25, 2020) 592 U.S. ____; but see S. Bay United Pentecostal Church v. Newsom (2020) 140 S. Ct. 1613 (decided with Justice Ginsburg still on the Court).) While most businesses and institutions will not be able to take advantage of the fundamental free exercise right, these cases illustrate that disparate treatment under state pandemic regulations is unquestionably on the Court’s radar and that California must take care in crafting its rules.
That being said, in contrast to New York City’s seemingly unreasoned disparate treatment of restaurants, the thought and methodology that went into California’s four-tier county-by-county rule may be its saving grace for non-religious establishments. While forced closures may remain oppressive to some, the reason of the rules has removed the arbitrariness.
The Equal Protection Clause
The federal Equal Protection Clause forbids a state from “deny[ing] to any person within its jurisdiction the equal protection of the laws” and is “essentially a direction that all persons similarly situated should be treated alike.” (City of Cleburne v. Cleburne Living Ctr., Inc. (1985) 473 U.S. 432, 439.) It “requires that the law be evenhanded as actually applied.” (McQueary v. Blodgett (9th Cir. 1991) 924 F.2d 829, 835 (emphasis in original).)
All businesses in California have a right to evenhanded imposition of laws and rules. While California’s tiered system does not explicitly discriminate on the basis of race, gender or any protected class, this fact is not a bar to an equal protection claim. (McQueary, supra, at 834; see also Harlen Assocs. v. Inc. Vill. of Mineola (2d Cir. 2001) 273 F.3d 494, 499 (“The equal protection guarantee ... extends to individuals who allege no specific class membership but are nonetheless subjected to invidious discrimination at the hands of government officials.”) Since no protected class membership is likely to be at issue in most disparate treatment claims, California’s reopening plan is subject only to rational basis review. (See Robinson v. Marshall (9th Cir. 1995) 66 F.3d 249, 251; McQueary, 924 F.2d at 834.)
The four-tier California Reopening Plan permits businesses in different counties to be treated differently. This rule, on its face, appears to be workable so long as its rules are based on rational distinctions. But the plan permits counties and municipalities to impose discretionary heightened restrictions and doing so likely entails constitutional risk if the standards are not articulated. Like New York City, San Francisco has at times permitted only outdoor dining, though its tier would allow for indoor dining, and it is unclear what criteria are being employed for such a distinction. Departure from the general rule, without reason, led to equal protection claims in New York with some success.
For instance, in DiMartile v. Cuomo, (N.D.N.Y. August 7, 2020) 20-CV-0859, ––– F.Supp.3d ––––, 2020 WL 4558711, the District Court granted a preliminary injunction prohibiting enforcement of a rule limiting a wedding venue’s capacity to 50 people. Plaintiff argued that the venue operated like a restaurant and restaurants were not limited to 50 patrons. The Court held that it “can find no rational basis for [New York’s] difference in treatment between use of the venues in question for ordinary dining and use of those venues for weddings.” (Id. at * 10.)
California governments should be on notice that they need to walk a fine line in crafting rules that distinguish among similarly situated businesses without, at the very least, a rational basis for such distinction. As was the case in DiMartile in New York, if challenged, it is unclear whether San Francisco can justify, even with just a rational basis, its decision to prohibit indoor dining.
Moreover, government must take care to avoid making distinctions that implicate any other constitutional considerations such as a protected class, freedom of speech, freedom of religion or other fundamental right. Such distinctions appear to be facing strict scrutiny. (See, e.g., Roman Catholic Diocese of Brooklyn, supra, “The State’s discrimination against religion … triggers heightened scrutiny ….” (Kavanaugh, J. concurring, at * 2).) The U.S. Supreme Court has already demonstrated a refusal to simply rubber stamp public health rules related to the pandemic. While the contours of the limitations remain to be determined, it is becoming clearer that governments must make well-reasoned distinctions when crafting rules.
Daniel J. Schneider is a New York based trial attorney and a Founding Partner at Farber Schneider Ferrari LLP. His practice centers around the real estate arena, representing developers, design professionals, interior designers, contractors and others with a multitude of issues which affect real property and construction projects. This includes, without limitation, property damage, construction defects, personal injury defense, neighbor disputes, corporate disputes, contractual issues and employment issues within the various companies. Mr. Schneider previously practiced in Southern California as General Counsel for an education-based start-up and is on the cusp of expanding his California practice. He opened his firm with his partners and a shared philosophy that good relationships are good business and that efficiency and effective advocacy cultivate a years long attorney-client relationship that spans multiple matters