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State Tries To Block Goodell Argument

Assemblyman Andrew Goodell will be allowed to file a brief on behalf of Sen. George Borrello’s lawsuit seeking to dismiss new state Health Department isolation and quarantine rules.

The state Attorney General’s office filed a motion opposing Goodell’s amicus curie, or “friend of the court,” brief in a lawsuit by Sen. George Borrello, R-Sunset Bay, and Assembly members Chris Tague and Michael Lawler that is trying to prevent new state Health Department isolation and quarantine standards from becoming law. Judge Ronald Ploetz of state Supreme Court in Cattaraugus County has ruled Goodell’s brief will be admitted.

Attorneys David Sleight and Stephanie Calhoun, assistant state attorneys general from Buffalo, argued Goodell hasn’t shown that his brief will bring any additional information to Judge Ronald Ploetz that wouldn’t already be provided. Sleight and Calhoun argue interest in the case shouldn’t allow Goodell or other interested legislators from weighing in with briefs. There have been more than 80 pieces of evidence, affidavits, affirmations and memorandums of law filed in Borrello, Tague, Lawler and Uniting NYS LLC v. Hochul, Bassett, New York State Health Department and Public Health and Health Planning Council.

“However, the extensive pleadings by each side have demonstrated that neither side requires any additional assistance as to the legal issues presented herein. The Court will have more then ample arguments by each party to render its decision,” Calhoun and Slate argued.

Goodell countered that none of the other three legislators involved in the lawsuit are attorneys, while the attorney representing Borrello, Tague and Lawler is not a legislator, which means she doesn’t have direct and personal knowledge of the legislature internal operations. The Jamestown Republican cited one of the 93 documents in the case file submitted by Sleight and Calhoun, a brochure titled, “How A Bill Becomes A Law.”

The state has argued that legislation proposed and withdrawn under public pressure by Assemblyman Nick Perry, D-Brooklyn, has no bearing in the creation of new isolation and quarantine rules. Goodell argues he should be allowed to submit his brief because the situation surrounding A.416 is far from the typical procedure one sees in a civics class or in the brochure the state entered into evidence.

“To be clear, this affidavit is not intended to suggest in any manner that any of the attorneys appearing before the court are not smart, capable, and honest attorneys,” Goodell argued. “Quite the the attorneys appear to be very competent in researching and articulating their respective positions. Rather, this affidavit merely points out that some of the most important information and knowledge regarding the actual internal operation of the State Legislature cannot be found in law books, case files, or brochures. The bill introduced by Assemblyman Perry (A.416), that would empower the Health Department to detain suspected cases, contacts, or carriers of a communicable disease, is an excellent example of the difference between theory and practice.”

Borrello and his fellow Republicans have argued that the legislative repudiation of Perry’s bill should serve as notice that additional isolation or quarantine powers are not something both Democrats and Republicans in the legislature wanted to give. Goodell, in his response to the state’s motion, said he hasn’t seen as public a dismissal of a piece of legislation as he saw with Perry’s A.416.

The lawmakers allege the procedures violate the state Constitution and should be ruled null and void because the state lacks the statutory authority to create the rules and impermissibly crossed into the legislative arena with the rules. Among the changes would be a new section of the state health law spelling out new isolation and quarantine procedures. Isolation and quarantine orders would 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. Implementing the proposal through administrative rulemaking, lawmakers argue, is a violation of the separation of powers.

Goodell argues the dismissal of A.416, which had more due process protections than the proposed new Health Department rules, should serve as a sign the Health Department has gone farther than the legislature was willing to go. In particular, Goodell takes issue with the use of law enforcement personnel to confine people suspected of having a disease without a due process hearing or opportunity to be heard.

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