ROCHESTER — Oral arguments were heard Wednesday in the state’s appeal of a lower court ruling that found the Hochul administration violated the constitutional separation of powers in adopting a regulation establishing isolation and quarantine procedures through the agency rulemaking process.
Originally filed in April 2022 in State Supreme Court of Cattaraugus County, the petitioners of the lawsuit are state Sen. George Borrello, Assemblyman Chris Tague, Assemblyman (now, Congressman) Michael Lawler and the organization Uniting NYS.
The regulation gives the state Department of Health and/or the local health authority the power to mandate isolation and quarantine orders for individuals with no proof they are sick or have been exposed to diseases listed in the regulation. It also provides the health authority with the ability to determine the isolation location, which may include facilities outside of one’s own home and even using law enforcement to do so.
Borrello noted that the list of diseases in the regulation went far beyond COVID and included several that are not even communicable and therefore pose no public health threat. He said the list could be easily amended to include others.
“Rule 2.13 is a red flag that underscores the lingering authoritarian approach to governing, which is a holdover from the pandemic,” Borrello said Wednesday. “The unprecedented emergency powers given to the Executive Branch became the ‘new normal’ for two years and gave rise to certain abuses, like this dangerous isolation and quarantine regulation.”
The Republican senator from Chautauqua County said the principle at the heart of the lawsuit is the constitutional separation of powers, which he believes was violated by the administration’s actions.
“They overstepped their authority by attempting to enact such an expansive mandate,” he said. “If we allowed that to occur unchallenged, it would invite further overreach.”
In his July 2022 ruling in favor of the petitioners, Cattaraugus County Judge Ronald D. Ploetz noted in his decision that the Legislature has already passed a law that covers this issue. He said, “…PHL 2120 was enacted by the Legislature in 1953 and provides a procedure for obtaining a quarantine or isolation order.” He further noted that “Rule 2.13 actually contravenes the procedures set forth in PHL 2120 and ignores the balancing act between an individual’s rights and the need for public safety.”
Bobbie Anne Flower Cox, the attorney representing the petitioners, said Wednesday’s oral arguments at the Supreme Court Appellate Division were held because the governor and the DOH are “trying to get back the unconstitutional power to isolate or quarantine New Yorkers with no proof you are sick, no proof you have been exposed to a communicable disease, and they want the power to lock you up or lock you down for however long they want, without any stated procedure on how you can regain your freedom.”
She said the “horrendous regulation” would allow the administration to use law enforcement to enforce their orders or isolation or quarantine against residents.
“No right to an attorney or right to appeal the order until after you are locked up,” Cox said. “Guilty until proven innocent. The trial court last year was absolutely correct in striking down this regulation.”
Two amicus briefs in support of invalidating rule 2.13 were submitted, one by Assembly Members William Barclay, Andrew W. Goodell and Joseph Giglio and another by the New Civil Liberties Alliance, an advocacy group headquartered in Washington, D.C.
Borrello called the legal effort challenging the state is a “David versus Goliath” story, citing its teams of lawyers and resources to appeal Ploetz’s ruling.
“However, wastefully spending taxpayers’ hard-earned dollars to try to overturn a judicial decision which is on solid constitutional ground will only further confirm that this is an Executive Branch that views itself as above the law,” he said.
Several protestors were outside the court Wednesday morning to protest against quarantine, holding up signs, some of which read “No Quarantine Camps.”
The five-judge panel is expected to reach its decision on this case in a few months.
Gov. Kathy Hochul also held a press conference Wednesday afternoon regarding current COVID-19 cases and hospitalizations. She said that, while the number of cases isn’t as high as it was during the quarantine period, she is encouraging residents to get the updated vaccine.