My prediction: 3-0 vote to overturn the Northern District’s preliminary injunction order and affirm the Brooklyn District Court’s denial of a preliminary injunction

The scariest moment for Judge Debra Livingston (and maybe the rest of the panel): She asked the We the Patriots Attorney if they ruled that the DOH order violated the free exercise clause because it didn’t allow for a full-on religious exemption, would that mean that all mandatory vaccines which didn’t have a religious exemption would be unconstitutional?

In a moment of absolute candor, but a lack of reading the room and saying more that needed to be said, the lawyer said it would. He then added that he had a Connecticut case challenging mandatory school vaccines based on some of the same arguments he was making here. He didn’t have to say it, but everyone understood he was thinking that if the court ruled for him in this case, he’s going to hop in his car, drive to Connecticuit and show the judge in his other case the opinion, and then ask the judge to toss out all school mandatory vaccination in the entire state.

I felt the gulp, gasp, and shock of Judge Livingston over my phone listening via YouTube. Things hadn’t been going well for the plaintiffs until then, but this lawyer (who spoke after the Northern District prevailing attorney), I think sealed the fate of the plaintiffs. But maybe that’s putting too much importance on one statement, since as stated, the argument didn’t go well for the plaintiffs from the getgo

But maybe that’s even a little unfair because the main sense I got from the questioning between the judges and the plaintiffs’ counsel was that the judges just thought the plaintiffs’ attorneys were wrong about everything, about the meaning of the emergency order, about the law, wrong about the public health crises, and wrong in thinking that the state can’t take what the judges thought were obvious reasonable efforts to stop health care practitioners from infecting their patients. (And yes, I know the argument and evidence about the vaccine not stopping the spread of the disease, but I don’t think the judges were buying that either).

Here are a few other instances where I thought the judges indicated that the plaintiffs counsel were wrong:

The order didn’t preclude employers from granting religious accommodations i.e. providing an alternative to termination that involved continued work without patient contact. They were wrong on thinking that Title VII had what is called field preemption and that as a result, the state could not impose reasonable restrictions despite religious beliefs. They were wrong in arguing that a religious exemption is the same as a medical exemption which required the same treatment; i.e. that there be one in the order which theoretically allowed medical exemptees from continuing to work as before. They were wrong in thinking that the state could not impose reasonable restrictions on employees regardless of their religious beliefs in order to further public health and safety.

If you were listening to this argument and desperately wanted this panel of judges to sympathize with New York health care workers who have religious opposition to the COVID vaccine mandate; if you were hoping that the panel would have been outraged that the state was not allowing unvaccinated health care practitioners to continue to have patient contact, you would have been severely disappointed with the oral argument. You wouldn’t know from the oral argument that one of the lawyers was actually defending a lower court’s ruling in his clients’ favor.

I thought the first plaintiffs attorney, while very well prepared and quite facile on his feet, was agressive to the point of being bumptious (which is a word I almost never use, but aptly describes him. If you don’t know, it means offensively self-assertive).

On numerous occasions he talked over the judges. Let me be specific after being general. When lawyers talk, judges interrupt them with questions. It’s what judges do and most lawyers stop talking when a judge asks a question, even if the lawyer thinks he’s on a roll on an important point. Time and again, this lawyer just kept talking and talking and literally stopped the judge from asking his/her question until after the attorney finished his point. That’s something I don’t see often in oral arguments. To me it’s bad form, but maybe I’m too old school. I don’t think it will have any impact on the outcome, but he wasn’t helping his case in doing that.

He did a couple of other things which I think were unhelpful. For example, Judge Livingston twice asked him to speak about the actual order. And each time he just started talking about his brief which discussed what New York State said about the Order. He basically told the judge that he didn’t care what she wanted, he was going to do it his way. I don’t recall ever seeing a lawyer as unreactive/unresponsive to questioning by a panel of judges. Most lawyers are sensitive to what judges are saying and what’s bothering them, but not this attorney.

But then this guy got a federal judge to enjoin a New York state emergency order. So, whatever he was doing was working, at least possibly until now. But old school that I am, to me he was offensively self assertive. I have to admit that I’ve done some of that myself, and in my youthful days as an attorney. It never worked out as well as I thought it would at the moment.

All in all, it seemed pretty clear that the judges were not buying what he was selling, any of it.

I started with the Plaintiffs’ presentation because that was more dramatic and frankly odd to me. But the state’s attorney spoke first The state was the appellant(the loser) in the Northern district case, and the appellant speaks first at oral argument. THe Assistant Attorney General was a highly skilled advocate. He was precise, cogent, succicently responsive to the questioning by the judges. Time and again, the judges (or at least two of them) asked him questions which allowed him to explain a telling point, the most important of which was that the order did not prevent employers from granting some form of religious accommodation. It just barred them from allowing those having a religious accommodation from having patient contact. Admittedly tough/impossible for surgeons and such. But one judge said that sometimes there are consequences for having religious beliefs based on balancing of competing interests.

The point which Judge Livingston wanted to discuss was why they got rid of the religious exemption from the order even though it was included in Health Commissioner Zucker’s original order. I didn’t quite follow the explanation, something about that his was just a temporary order until a permanent order by the entire health commission could weigh in on it. And it wasn’t an amendment to the health commissioner’s order. I can’t say I fully understood what he said, but the judges seemed to accept it. One of the judges made a comment that just because a guy sticks his finger in a dike, it doesn’t have to stay there.

The state’s lawyer was asked whether the Maine case before the Supreme Court could have a bearing on this case. He said it could and when asked to distinguish the cases, the best he could come up with was that the medical exemptions in the New York order were limited to ACIP guidelines where the Maine law on medical exemptions was broader. In short, not much of a difference. Maybe the question was asked to see whether slow walking a decision might be in order since the Supremes could be weighing in on a similar issue very soon.

The bottom line for me was that it didn’t seem like a close case. The judges just didn’t accept what the plaintiffs’ counsel were arguing. As indicated, I think one of the lawyers scared the bejesus out of them by telling them what they feared, namely that if the panel ruled that a religious exemption to a mandatory vaccination policy is constitutionally required, then bye bye to all state laws which don’t have one for mandatory school vaccination. That was one bold legal move, but I doubt this panel of judges is going to go there.

The court reserved judgement, meaning it will issue a written decision something in the probably near future, perhaps with an eye on when the Supremes will take up the emergency application for a stay in the Maine case.

Rick Jaffe, Esq.