Whatever happened to Strong v. Zucker?

My Adventures in the Federal Court System

I started this substack in January 2022 when I was in the middle of my litigation against the New York State Health Department. Mainly my goal was to break out some of the arguments I was making in my legal papers into smaller, less legalistic, and hopefully more accessible pieces. (For all the legal papers filed in the case you can see my website at: http://twooldmeninchairs.com/Court.html)

In publishing the first three articles, I hoped to provide ideas that other attorneys might be able to expand on in other federal lawsuits. I do not claim that all these ideas are my own, as I used the PACER federal court reporting system to read many other legal filings to find arguments that I could adapt for use in my case.

Technically, my case was filed pro se, which means I was not considered a lawyer even though I did receive a law degree in 1980 from Albany Law School. I was admitted to the bar in the 4th Appellate Division in Rochester, NY in 1981 and had a very short career as a small town, sole practitioner for about 5 years.

During my short legal career, I mainly did real estate closings and some estate work. I did not do anything that involved litigation and certainly nothing at the federal level. After retiring from a field that I never really enjoyed in 1986, I pursued other interests including politics, newspaper publishing, farming and other entrepreneurial ventures.

From time to time, however, I called upon my legal background when I got involved in community activism. For instance, in 2007 I filled suit against the Town of Geneseo in state court in an unsuccessful attempt to get them to comply with the NYS Freedom of Information law and disclose correspondence between the Town attorney and a development company that was attempting to build a large Lowes store in our little town.

Our group Please Don‘t Destroy Geneseo (PDDG) got heavily involved in a prolonged SEQR process (State Environmental Quality Review.) Ultimately the Town did approve the project and we decided not to bring an appeal to court. Due to the recession caused by the financial crisis of 2008, however, the Lowes never got built. It was a case of losing every battle but winning the war!

After joining and commenting on a number of substacks recently including those of Robert Malone, Dr. Peter McCullough and Glenn Reynolds, I have noticed an increase in traffic to my substack and even have received a few new (free) subscriptions. That interest has inspired me to tell the rest of the story.

I first started writing my original complaint against NYS on July 4th, 2021. It seemed like a good day to take a stand. My original target mainly was regulations that the then still Cuomo-led state had adopted that I felt were discriminatory against unvaccinated people.

These regulations imposed stricter masking regulations on the unvaccinated vs. the vaccinated in a number of situations. I finally got around to filing my complaint in the Rochester office of the Western New York Federal District Court on Aug. 10, 2021, the same day that Gov. Cuomo announced he was stepping down.

The way these things work is that I had to serve the papers on the Director of the NYS Health Department, then Howard Zucker, and then the case would be defended by the NYS Attorney General’s office. A few weeks after I served the papers, I received a phone call from an attorney from the AG’s office informing me that the regulations that I had complained about had been rescinded.

I was quite surprised by this as there had been absolutely no press coverage of that change. I suspect that was intentional, as they wanted to keep the pressure on the unvaccinated by making their lives difficult–a pattern I saw throughout the pandemic. The attorney also revealed that mine was not the only federal lawsuit filed in the Rochester court against those regulations.

To my surprise it turned out that a small local winery in my same small home county of Livingston had also filed about a week before me. His case was being handled by an experienced civil rights attorney and financially backed by RFK’s Children’s Health Defense (CHD.)

The AG offered us the option to either dismiss our cases or amend them. The CHD decided to declare victory and go home, but I wasn’t done with NYS quite yet. In October of 2021 I filed an amended complaint taking aim at a number of discriminatory and coercive practices that’s the state continued to engage in against the Unvaccinated.

Among others, I took aim at the state’s Empire Pass, a vaccine pass program that they were attempting to roll out. This would be a digital pass that the state was encouraging businesses and venues to require people to show for entry. To me, this was a large step toward Totalitarianism.

Under my agreement with the AG, the state was to have two months to respond to my complaint which gave them a deadline shortly before Christmas. The wheels of justice grind slowly! Of course a few days before the deadline they asked the court for another month. Thinking that the judge would probably grant it anyway, I agreed.

The day after I stipulated to an extension, the NYS Health Department announced a whole new series of “Holiday Emergency” regulations ostensibly to deal with the fast spreading Omicron variety and the likelihood that it would create a crisis for the health system when spread through holiday gatherings.

These new regs were even more discriminatory against the Unvaccinated than the ones I had originally filed suit against back in August! For example, businesses were told that if they barred the Unvaccinated from entry that their customers and staff who were vaccinated would not have to wear masks.

When I heard about this I saw red! I immediately drew up a motion for a preliminary injunction against these new regs. When you apply for such an injunction you are entitled to an expedited court schedule. Although the state had extra time to reply to the underlying complaint they were compelled to answer the motion.

Now I was about to get my first real lesson in the dirty business of litigation. The AG’s office produced an answer that not only totally mis-stated my arguments, but mis-characterized the effect of their own regulations. In other words, they argued against arguments that I had never made and denied what their own regulations plainly said. I was flabbergasted!

A few weeks later, Judge David Latimer, the senior judge in Rochester originally appointed by Ronald Reagan, came down with a decision denying my injunction. I was not terribly surprised to find that the judge did not think I had standing to enjoin the whole state on what he described as “my minor inconveniences” in dealing with the new regs.

Although that motion did not succeed, the main case ground on, although the AG’s office succeeded in getting another 30-day extension to answer my complaint. At the end of that period, instead of producing an actual answer, they filed a motion to dismiss my complaint for failure to state a cause of action. Again, they presented a very distorted view of what my case was about. I filed additional papers arguing against that motion.

For those unfamiliar with the law, in considering such a motion, the judge is supposed to assume that all my allegations were true. This the judged proved unable to do. In dismissing my case, he stated his disbelief that certain of my allegations such as the number of people killed or injured by the vaccine could possibly be true.

What I had run up against was the problem of getting a fair trial in a vax-crazy system. As Attorney Thomas Renz has pointed out, Federal judges do not live in a vacuum. As federal agencies they were governed by CDC rules on mandatory vaccinations, masks etc. –not to mention the likely affect of their consumption of media propaganda in a blue city.

Having failed to red-pill a senior Conservative judge, I decided that to appeal to the 2nd Circuit Court of Appeals in New York City would be even more difficult. We all know how vax-crazy they are down there!

In addition, the appeal would have required additional costs and fees out of pocket, and since I did not have a big organization backing me, I decided to retire to the more peaceful pursuit of agriculture and my other businesses, including a new career as a YouTube music reactor. As I had learned as a long time reader of Glenn Reynold’s Instapundit blog, “Culture is upstream from politics!” (See my You Tube channel at Old Men in Chairs!)

The judge’s dismissal was again mainly on standing, which I expected the 2nd circuit would quickly ratify without getting to the underlying issues. Far more competent attorneys than I have had many cases thrown out on this basis in the Covid Era. Apparently nobody has standing in Federal Court to complain about the (not so slow) slide of some of our Blue states into Totalitarianism.

This is just a bare bones description of my legal case. I intend to write further essays on some of the other issues in the case, but in the mean time, I also have some video discussions of the case available on my Rumble channel including:

1. A summary of the case through Feb 2022:
https://rumble.com/vvz2bh-episode-9a-can-the-unvaxxed-get-a-fair-trial-in-a-vax-crazy-world.html

2. My reaction to the Judge’s decision to not grant my injunction:
https://rumble.com/vtiz8v-tomicnn-special-report-judges-denies-injunction.html

2. The reasons for my decision not to appeal to the 2nd Circuit Court of Appeals:
https://rumble.com/v12zh9b-episode-15a-the-end-of-a-chapter-14-min..html

P.S. Although Health Commissioner Howard Zucker shortly after followed the Governor out of the door under the same cloud of excessive nursing home deaths, you will be glad to hear that he landed a good job at the CDC!