By
Brenda Baletti, Ph.D.
The New York State Supreme Court Appellate Division issued a ruling last week that effectively paves the way for quarantine camps in the future, the Brownstone Institute reported.
The court’s Nov. 17 decision reversed a lower court ruling that determined the March 2020 emergency rule 2.13 establishing “Isolation and Quarantine Procedures” was unconstitutional.
The lower court ruling stemmed from a lawsuit filed in April 2022 by three New York State lawmakers and the citizens’ group Uniting NYS, who sued Gov. Kathleen Hochul and the New York State Department of Health (DOH) over rule 2.13.
The DOH later sought to make the rule permanent by establishing procedures through which state health officials could isolate or quarantine, against their will, people who had or were suspected of having a “highly contagious communicable disease.”
State Supreme Court Judge Ronald Ploetz, on July 28, 2022, ruled in favor of the plaintiffs, striking down the law. But last week, the appellate court reversed that decision, ruling that the plaintiffs had no standing to sue because they had not suffered “a direct and personal injury.”
In a statement, the plaintiffs said they were “deeply disappointed” in the ruling, which did not examine the central questions at stake in the lawsuit.
They said:
“The court did not address the merits of the case which were outlined by Judge Ploetz in his original decision. Instead, they shamefully reversed and dismissed the case on a technicality, claiming that we, the petitioners, somehow lacked standing to bring the case in the first place.
“We strongly disagree with their ruling and are concerned about the widespread implications of this erroneous decision.
“They have not only paved the way for Hochul and her Department of Health to re-issue this heinous Rule, but they have set a precedent to preclude citizens from rightfully challenging government overreach in court, and they’ve effectively unconstitutionally empowered the Executive Branch to overreach into policymaking, which is a decision that could open the door to further abuses of power.”
Plaintiffs’ attorney Bobbie Anne Cox told The Defender they plan to appeal the decision.
“We are planning to appeal this to the Court of Appeals, which is the highest New York State Court, and it is a court of constitutional integrity,” she said. “We are confident that that court will overturn this calamitous decision by the appellate division.”
‘Isolation and Quarantine Procedures’ rule merely gives ‘lip service’ to due process
At the start of the COVID-19 pandemic, then-Gov. Andrew Cuomo declared a state disaster emergency and authorized the DOH to issue emergency regulations.
DOH then declared and regularly readopted a series of emergency regulations, including rule 2.13, which stated that to control a “highly contagious communicable disease” the state commissioner of health could issue quarantine orders for individual people or direct the local health department to do so.
The rule specified that quarantine locations could include the home or “other residential or temporary housing quarantine, or quarantine at such other locations as the public health authority issuing the order deems appropriate.”
It states that any quarantine order should specify the location and duration of quarantine, how they will get there and any other limitations on the person while quarantined. It also authorizes the DOH to work with law enforcement to compel compliance with the order.
A person compelled to quarantine does have the right to legal counsel and to seek judicial review, the regulation states, but it doesn’t outline procedures through which a quarantined person might access those rights or might exit quarantine.
This new rule was issued despite the fact that Public Health Law 2120, passed in 1953, already established procedures for the “commitment” of a person with a communicable disease who was unwilling to protect others.
Cox said there were several major differences between the existing Public Health Law and the emergency order.
Under the existing Public Health Law, she said, to isolate or quarantine someone, a physician would first confirm they had a disease and were unwilling to protect others. The health department would then investigate the allegation and if it deemed the person a “health threat,” would petition the court to hold an evidentiary hearing.
“The person would get notice they have a hearing and they would have the right to an attorney before they are quarantined,” she emphasized. Then, if the judge found they were infected and unwilling to comport themselves in a proper manner to safeguard those around them, “a judge — not the Department of Health — could issue a quarantine order.”
That order, she added, can only put someone in a hospital, where they presumably receive care for their communicable disease until they recover.
“The regulation is the complete opposite,” Cox said.
She explained:
“The Department of Health has full power. There’s no judge involved. You don’t get the right to an attorney until after you’re locked up. There’s no need for them to prove you’re sick. There’s no need for them to prove that you were exposed. There’s no need for them to prove you’re a public health threat to those around you. They can just lock you up or lock you down according to their whim for however long they want.”
The new rule was extended by successive 90-day periods after its adoption, and the state moved to make it permanent in December 2021 — even though the state disaster emergency period had been terminated.
However, in April 2022, state Sen. George Borrello, Assemblyman Chris Tague and Congressman Mike Lawler, along with Uniting NYS filed a lawsuit arguing the order violated the separation of powers doctrine because it encroached on the legislature’s lawmaking powers.
Plaintiffs also argued that requiring people to isolate or quarantine against their will violates their right to due process.
“Given the language, it is clear that the Commissioner of Health or a local health department could quarantine individuals against their will at a location of the Commissioner or Health Department’s choosing — a gross abuse of due process and New Yorkers’ civil rights,” Borrello said in a statement.
Judge Ploetz ruled for the plaintiffs in July 2022, declaring that the rule violated the New York State and the U.S. Constitution, “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,” Ploetz wrote.
He also noted that the existing law provides due process protections — including the right to counsel, the requirement for evidentiary proof of the need for detention, and a decision by a magistrate prior to detention — that rule 2.13 does not.
Any of those rights offered by 2.13 are only offered after the fact, once the person has been detained, isolated and in a position where accessing those rights could be challenging, Ploetz noted in the ruling.
“Rule 2.13 merely gives ‘lip service’ to Constitutional due process,” he added.
The Hochul administration appealed the ruling and the appeals court issued this most recent ruling last Friday.
No ‘direct and personal injury’?
According to last week’s ruling, the individual members of the New York Legislature and United NYS “lacked standing” to bring the lawsuit, which means they did not have the right to sue because neither party had experienced a “direct and personal injury.”
The legislators had brought the case alleging the rule was unconstitutional and violated their rights because it violated the separation of powers.
Cox explained the premise to Kim Mack Rosenberg, Children’s Health Defense acting general counsel, in an interview on CHD.TV. She said:
“The premise of our case was separation of powers, which means all three branches of government have their own separate powers, their own separate authorities, and they’re supposed to each stay in their own lane. We have checks and balances built into our governmental system so that one of those branches doesn’t become too powerful by overstepping its bounds and taking a power from another branch of government.”
Cox said the executive branch is not supposed to create laws, but by calling the Isolation and Quarantine Procedures a “regulation” and implementing it through the DOH, they had effectively done so.
But the court ruled that the alleged action did not “represent a concrete and particularized harm” to the legislators.
Because the legislators alleged harm to the separation of powers but had not personally experienced something like having their vote nullified, the judge wrote, they did not show they suffered anything “beyond an abstract institutional harm,” and an institutional harm did not give them standing to sue.
And the citizens’ group, the ruling said, lacked standing because none of the members of the group had actually been isolated and quarantined. The court also said their claim that they had been deprived of a voice in the policymaking process did not constitute a direct injury.
Cox said that long-standing case law supports the plaintiff’s position that they do have standing, and they have suffered obvious harms.
“The judge at the trial court level last year didn’t even address standing in his decision, even though the attorney general was making these same arguments then. It was so obvious that my plaintiffs had standing that he didn’t even bother to address it in his decision,” she added.
The plaintiffs called the appellate court’s decision “calamitous,” Cox said, “because it’s not just opening the door for the governor and the DOH to now reissue this regulation. It also is limiting who can sue in a court of law in New York state when you want to challenge the overreach of the government. So it has really far-reaching negative implications.”
Rosenberg told The Defender:
“This decision is very concerning and the court’s constricted interpretation of standing suggests that only those detained without due process under the unconstitutional regulation that conflicts with existing New York state law could bring an action.
“No one should have to suffer in this way to challenge this regulation. I look forward to following the appeal of this decision.”
Watch Cox and Rosenberg discuss the case here:
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