Not only should three state lawmakers have standing to sue the state Health Department over new isolation and quarantine rules, but those rules are a clear expansion of executive power at the expense of the state Legislature.

That is the crux of the argument made in recent court filings by Bobbi Ann Cox, the attorney representing Sen. George Borrello, state Assemblymen Chris Tague and Michael Lawler, and Uniting NYS LLC in their lawsuit seeking to stop an expansion of state isolation and quarantine authority. The case is expected to be heard in the September term of the Fourth Department Appellate Division in Rochester. The state has been given until April 1 to file further responses.

USURPING THE

JUDICIARY

Jonathan Hitsous, assistant state solicitor general who is arguing the case on behalf of Attorney General Letitia James, said in his prior brief in the appeal the Fourth Department Appellate Division should rule first on the issue of standing before moving to the other arguments the state makes. The lawmakers’ lack of standing, according to Hitsous’ brief, stems from the fact the lawmakers themselves didn’t suffer any “personal and concrete” injuries from the proposed change to isolation and quarantine rules. He also argues that the new isolation and quarantine rules are a lawful use of the state Health Department’s rulemaking authority because the new rules clarify and elaborate on existing Public Health Law. The state is asking the Fourth Department Appellate Division justices to rule that Borrello and his fellow plaintiffs didn’t have standing to sue as well as to rule that the isolation and quarantine rule is valid.

Cox recently filed her response to the state’s briefs filed in April.

In her brief, Cox states Borrello and his fellow lawmakers didn’t bring the action on behalf of anyone else but instead argue that the state’s regulatory rulemaking usurped the legislators’ ability to make policy.

“We cannot allow one branch of government to usurp the power of another branch,” Cox wrote in her brief. “Nor can we allow one branch to arrogate power to itself that it’s not intended to have. If this honorable Court overturns Supreme Court’s decision and validates Rule 2.13, you will be declaring the Executive branch to be superior to the Legislative branch, and you’ll cause the Legislative branch to plummet in power, for it will serve no purpose if its laws can be circumvented by unelected, agency bureaucrats. Indeed, reinstating Rule 2.13 would also allow the Executive branch to usurp the judiciary, as Rule 2.13 circumvents PHL (section) 2120’s requirement that courts issue isolation/quarantine orders, not Appellants.”

WHAT’S PROPOSED

The state Health Department had originally proposed the new rules in late 2021 as part of an administrative rulemaking. In addition to Gov. Kathy Hochul, Mary Bassett, state health commissioner, the state Health Department and the state Public Health and Health Planning Council were named in the lawsuit. The state wants to update its isolation and quarantine rules to include home isolation or other residential or temporary housing location that the public health authority issuing the order deems appropriate, including a hospital if necessary but including apartments, hotels or motels.

Specifically, an isolation or quarantine order would be required to specify the basis for the order, the location the person is to isolate or quarantine unless travel is authorized — such as for medical care; the length of the order; and instructions to prevent transmission to people living or working at the isolation or quarantine location. The new guidance includes the right to request the public health authority issuing the order inform a reasonable number of people of the order, a statement the person has the right to seek judicial review of the order and a statement that the person has the right to legal counsel, including public defense.

Also spelled out is authority for public health bodies to monitor people to make sure they are complying with an isolation or quarantine order to determine if the person needs additional medical care; coordination with local law enforcement to make sure people comply with the order; and provision of food, laundry, medical care and medications if they are not otherwise available. Any person who violates a public health order shall be subject to all civil and criminal penalties as provided for by law. For purposes of civil penalties, each day the order is violated is a separate violation.

COX: ASK THE

LEGISLATURE

Borrello and his fellow plaintiffs had argued the Health Department’s proposed rules violated due process rights for those being involuntarily confined because a court is involved early in the current quarantine process as opposed to at the end of the process under the state’s policy used throughout the COVID-19 pandemic.

That argument is repeated in Cox’s brief.

“In the history of mankind, no government has ever taken power from its people, and then voluntarily given it back. The people have to demand it back!” Cox wrote. “That is what Petitioners-Respondents did in bringing this lawsuit to strike down Rule 2.13, and Supreme Court ruled in our favor. We respectfully submit that it is just and proper for this honorable Court to uphold that Supreme Court ruling, deny Appellants their relief sought, and help New Yorkers restore the balance of power to our state. If Appellants want to change our 70-year-old quarantine law from empowering courts (in conjunction with local health authorities), to instead empowering the State Commissioner/DOH (without the courts), to issue isolation/quarantine orders, then Appellants need to peddle their goods to the Legislature and ask them to change PHL (section) 2120.”