State Files Appeal In Borrello-Led Court Case

State Sen. George Borrello, R-Sunset Bay, isn’t done fighting new state isolation and quarantine rules yet.

The state filed an appeal in the case on Wednesday. Attorney General Letitia James appealed the case through David Sleight and Stephanie Calhoun, assistant state attorneys general stationed in Buffalo.

Borrello said in a news release he was disappointed by the decision by James and Gov. Kathy Hochul to appeal Judge Ronald Ploetz’ decision.

“Governor Hochul and Attorney General James are doing a disservice to New Yorkers in appealing Judge Ploetz’ ruling declaring Rule 2.13 unconstitutional and ‘null and void.,'” Borrello said. “What they are fighting to defend goes beyond the scope of this disturbing, authoritarian-style regulation; they are fighting to establish the rulemaking process as a backdoor channel for creating mandates and measures that rightly belong in the legislative realm. Defending and affirming the constitutional separation of powers was always the core of this lawsuit. The pandemic and the ’emergency’ authority it gave the Executive Branch has proven to be a powerful political tool the governor is reluctant to relinquish. However, checks and balances must be restored so that horrific rules like 2.13 cannot slide under the radar.”

On July 9, Ploetz ruled in George M. Borrello et. al. v. Kathleen C. Hochul et. al. that proposed Rule 2.13 violates the state and U.S. constitutions because it violates constitutional due process rights. 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.

Borrello and his fellow plaintiffs argued that the expansion of the state’s authority usurped legislative authority while also not allowing proper due process until after someone was placed into an involuntary quarantine. Ploetz ruled the proposed administrative rules disregarded any balance of individual rights against the needs of public safety rules, that the Health Department had not just filled in details of a broad legislative policy but used a blank slate to write its own rules, and that the Health Department had not used any special expertise or competence in the field to develop its proposed rules.

“I am once again calling on the governor and the attorney general to accept the will of the people and their constitutional freedoms by abandoning this appeal,” Borrello said. “There is no ambiguity in this ruling and pushing it further through the courts will simply waste taxpayer resources and direct attention away from pressing problems like our crime crisis and soaring inflation. I echo the call of my fellow plaintiffs in urging New Yorkers to contact the offices of Gov. Hochul and Attorney General Letitia James to request they drop their appeal immediately and let the court’s strong and just ruling stand.”


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