Things moving quickly: remember way back when -- in April, was it? -- when a Connecticut lounge owner sued a mayor and the governor, asserting that a shut-down order was a taking?
Well, the court recently denied the plaintiffs' request for a temporary restraining order.
There's nothing in the Ruling about the takings claims as far as we can tell, but we suggest you read it nonetheless because it relies heavily on a U.S. Supreme Court case that has once again become prominent: Jacobson v. Massachusetts, 197 U.S. 11 (1905). That's the one where the Court held that it was not an unconstitutional deprivation of liberty to require Jacobson to get a vaccine. We think that case and the general sense that courts give a lot of leeway to the other branches when evaluating their responses to emergencies (especially during the emergency) is going to get a hard look again.
This ruling may not be the last word on the subject in this case for a couple of reasons. First, this is merely the denial of a TRO, not a ruling on the ultimate merit (even though we think the handwriting is on the wall; the court also recently denied the defendants' motion to dismiss, but only, apparently, on procedural grounds).
Second, the plaintiffs' lawyer doesn't seem like the kind of guy to simply let it go. Here's his reaction to the ruling from the local paper:
Norm Pattis, the lawyer for Amato and Monsanto, derided the judge’s reliance on what Pattis said were outdated precedents.“The ruling relies heavily on the sole U.S. Supreme Court case to come close to the issue, decided before World War I,” Pattis said in an email Thursday. “By that anachronistic standard prohibition is legal, women can’t vote and discrimination is accepted social custom. Judge Shea’s decision is the equivalent of driving a horse and buggy down the interstate and should offend any sane person trying to navigate the highways today.”
Stay tuned.
