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Examining State Senator George Borrello’s challenge to “quarantine rule 2.13”

A Column by Frederick Sinclair

NYS Senator George Borrello represents the 57th Senatorial District covering much of Western NY including a portion of Allegany County. He joined three other lawmakers and the citizen group Uniting NYS, as plaintiffs in a Supreme Court lawsuit filed in April 2022 which sued Gov. Kathleen Hochul and the NYS Department of Health (DOH). The complaint was over their permanent extension of temporary regulation into law based on the Gov. Cuomo disaster emergency executive authorization of COVID 19 quarantine rule 2.13. If allowed, it will permanently establish new ‘Isolation and Quarantine Procedures’. Under this new law state health officials could isolate or quarantine people, against their will, who had or were suspected of having a highly contagious communicable disease. The pandemic and the Governors’ power of temporary disaster authorization had ended,  however, this executive branch action declared Law with total disregard for the responsibilities of the NYS legislature.  State Supreme Court Judge Ronald Ploetz, in a July 28 2022 decision, agreed with the plaintiffs and struck down the Hochul and DOH Isolation and Procedures Act as being unconstitutional.

A previously existing Public Health Law 2120, passed in 1953, already established procedures for the commitment to a hospital of a person with a communicable disease who was unwilling to protect others from infection.  There are, however, major differences between the existing 1953 law and Gov. Hochuls’ new Isolation and Quarantine Procedures. Historically, to isolate or quarantine someone, a physician must first confirm they had a disease and were unwilling to protect others. Investigation, by the DOH, would then investigate the allegation and if deemed a ‘health threat’ would petition a court evidentiary hearing. The person has the right to an attorney and after deliberation, the judge could legally issue or deny a quarantine order.    

Gov. Hochuls’ and the DOH new law is the complete opposite, as outlined by the plaintiffs attorney Bobbie Anne Cox, who explains: “ The Department of Health will have full power. There is no judge involved. You don’t get the right to an attorney until after you are locked up. There is no need for them to prove you are sick. There is no need for them to prove you were exposed. There is 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 plaintiffs, Senator Borrello , Assemblyman Chris Tague, Congressman Mike Lawler joined by citizens of  Uniting NYS,  argued that the law violates the separation of powers doctrine because it encroaches on the legislative lawmaking powers and requires people to isolate or quarantine,  against their will,  “it is a gross abuse of due process and New Yorkers’ civil rights.”  The July 2022 ruling, declared the new law violates the State and US Constitution, contravenes the established 1953 procedures set forth in PHL 2120 and ignores the balancing act between an individual’s rights and the need for public safety.

Gov. Hochul mobilized state resources and challenged the July  2022 ruling by filing an appeal to the NYS Appellate Court. In November 2023 that appellate court overturned the previous decision and declared that the lawmakers did not have standing to bring the action because their complaint did not show they suffered anything “beyond an abstract institutional harm”. The ruling went on to say that the citizens group lacked standing because none of the members of the group had actually been isolated or quarantined and that being deprived a voice in the policy making process does not constitute a direct injury.

The Appellate Division’s decision is “calamitous” Cox, attorney for the plaintiffs, said, “ because it’s not just opening the door for the governor and the DOH to 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. Rule 2.13 has far-reaching negative implications.” Senator Borrello has penned a letter to Governor Hochul requesting that her administration refrain from a reissuing of Rule 2.13 as the “Isolation and Quarantine Procedures Law.” Senator Borrello has also made clear the intent of the plaintiffs to appeal the decision to the highest NYS Supreme Court of Appeals.

Frederick Sinclair is a Alfred Station NY based writer, you can reach him at fpsinclair@yahoo.com.

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