This month oral arguments were heard as the State of New York appealed a lower court ruling which found that New York Gov. Kathy Hochul’s (D) administration violated the constitutional separation of powers. What was done was adoption of a regulation establishing compulsory isolation and quarantine procedures through the agency rulemaking process.
In April of 2022, attorney Bobbie Anne Flower-Cox filed suit in the New York State Supreme Court against Gov. Kathy Hochul (D-NY) and the New York State Department of Health. The plaintiff in the case is Sen. George Borrello (R-NY). The suit filed, Borrello v. Hochul, seeks to prevent implementation of 10 NYCRR 2.13, or Rule 2.13, which is a Department of Health (DOH) regulation related to “Isolation and Quarantine Procedures”. The new rule empowers public health officials to issue isolation and quarantine orders for New York citizens “to control the spread of a highly contagious communicable disease.”
According to attorney Cox, this new regulation will leave citizens vulnerable to multiple violations of their civil rights. Nothing in Rule 2.13 requires public health officials to prove the targets of their orders have a communicable disease. Due process is denied prior to detainment, and there will be no advance warning of intent to detain required. Health officials will be instructed to “monitor” citizens placed in quarantine or isolation and law enforcement can be used to manage compliance on their orders.
With Rule 2.13 the State Commissioner of Health has the authority to “whenever appropriate to control the spread of a highly contagious communicable disease, issue and/or direct the local health authority to issue isolation and/or quarantine orders, consistent with due process of law, to all such persons as the State Commissioner of Health shall determine appropriate.”
Sen. Borrello reported the list of diseases in the new regulation went far beyond COVID. It included several which are not even communicable and therefore pose no public health threat. The Senator said the list could be easily amended to include others. One can imagine journalists simply trying to expose the truth could be put into Hochul’s quarantine.
“Rule 2.13 is a red flag that underscores the lingering authoritarian approach to governing, which is a holdover from the pandemic,” Borrello said. “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 state 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 Hochul administration’s actions which appear to be an abuse of power.
“They overstepped their authority by attempting to enact such an expansive mandate,” Borrello said. “If we allowed that to occur unchallenged, it would invite further overreach.”
In July of 2022 Judge Ronald D. Ploetz ruled in favor of the petitioners noting in his decision the State Legislature had already passed a law covering 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 “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.”
Attorney Cox, representing the petitioners, said in oral arguments at the Supreme Court Appellate Division 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.”
Cox said this “horrendous regulation” will allow “No right to an attorney or right to appeal the order until after you are locked up. Guilty until proven innocent. The trial court last year was absolutely correct in striking down this regulation.”
Attorney Cox is said to be working on an appeal while waiting to hear if her case will be heard. It is reported she has been fighting this fight for two years pro bono with no intention of stopping. “If people knew about the regulation, everything about this, they would be outraged,” she said.
During the latest proceedings several protestors were seen outside the court protesting Gov. Hochul’s Rule 2.13 holding up signs which read “No Quarantine Camps.”
TIMELINE OF EVENTS
In March 2020, New York Governor Kathy Hochul (D-NY) signed Executive Order No. 202, whereby the Governor modified Public Health Law § 225 to allow the Commissioner of Health to promulgate emergency regulations. On March 9, 2020, the Commissioner of Health adopted Rule 2.13.
In April 2022, attorney Bobbie Anne Flower-Cox filed suit in the New York State Supreme Court against Gov. Hochul and the New York State Department of Health, Borrello v. Hochul, which seeks to prevent implementation of 10 NYCRR 2.13, or Rule 2.13, a DOH regulation titled “Isolation and Quarantine Procedures”. New York state Sen. George Borrello is the plaintiff named in the title of the suit. He is also joined by then-Assemblyman Mike Lawler, now U.S. congressman, and Assemblyman Chris Tague in the action, all are, or were, Republicans state legislators.
On July 11 2022 Acting Supreme Court Judge Ronald D. Ploetz ruled that the state Health Department’s COVID-19 rulemaking violated separation of powers.
In March of 2023, New York Attorney General Letitia James files an appeal.
“New York AG Letitia James appeals court ruling blocking people from being forced into quarantine, isolation” FOX News March 20, 2023
On December 1 of 2023 New York State’s Fourth Judicial Department (with a Democratic Super Majority) reinstated the un-constitutional New York 2.13 policy that empowers NY State government to order people to involuntarily isolate or quarantine in order to prevent the spread of diseases. This quarantine may involve their removal from their home address to so-called “quarantine camps”. This five-judge panel is to reach its final decision on this case in a few months.
Those involved have said appeals to higher courts are assured.
The Rule 2.13 of New York Governor Kathy Hochul
Investigation of Communicable Disease Isolation and Quarantine PDF
Copyright © 2023 by Mark S. Schwendau
