Sen. George Borrello, R-Sunset Bay, speaks on April 5 about a lawsuit he has filed along with two Republican Assemblymembers challenging isolation and quarantine rules proposed by the state Health Department. Submitted photo

New York’s attempt to move a lawsuit over new isolation and quarantine rules from state Supreme Court to federal court has backfired.

The legal wrangling has resulted in arguments being delayed until May 27.

The lawsuit was originally filed April 4 in state Supreme Court in Cattaraugus County by Sen. George Borrello, R-Sunset Bay, who is joined by Assemblymen Chris Tague and Michael Lawler and Uniting NYS in an Article 78 action against Gov. Kathy Hochul, Health Commissioner Mary Bassett, the state Health Department and the state Public Health and Health Planning Council. 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.

Judge Ronald Ploetz of state Supreme Court in Cattaraugus County granted an order to show cause and required answering papers to be filed April 12 with a hearing initially scheduled for April 14. State Attorney General Letitia James instead filed a motion to move the hearing from Cattaraugus County to U.S. District Court in Buffalo, arguing the lawsuit dealt with alleged violations of the U.S. Constitution.

“In the Verified Petition, petitioners allege that various executive orders enacted in response to the COVID-19 pandemic violate, inter alia, the Equal Protection Clause of the Fourteenth Amendment of the United State Constitution, and they seek a declaratory judgment to that effect,” James argued in her motion. “Because the Petitioners/Plaintiffs filed the operative pleading this action on April 6, 2022, the Notice of Removal is timely and proper.”

James’ motion prompted Roberta Cox, the lawyer representing Borrello and the other plaintiffs, to amend the original complaint to strike any reference to the U.S. Constitution. District Court granted the motion to amend the lawsuit and, on Tuesday, sent it back to Ploetz’ court in Cattaraugus County.

“While removal is a technically procedure correct, petitioners suggests that perhaps, (forthcoming protests notwithstanding), that respondents’ removal of this case to federal court was done as a tactical matter to delay the state case rather than to protect and safeguard their right to have a federal court dispose of a federal claim,” Cox and Thoma Marcelle, another attorney representing Borrello and the other plaintiffs, wrote in her memorandum of law. “So to make the matter abundantly clear that petitioners are seeking to have a ruling on New York state constitutional and statutory grounds, petitioners, via Fed. R. Civ. Pro. Rule 15(a), have filed an amended pleading with this court and with the New York Supreme Court which strikes any references to the United States Constitution and asserts no claims that arise under the United States Constitution. Thus, the court is left exclusively with New York state law claims. Given that only state law claims remain to be adjudicated, Petitioners ask this court to remand the case to state court so the matter may proceed expeditiously as intended by the state court.”

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 argue the new rules for isolation and quarantine are reminiscent of legislation proposed for the past several years by Assemblyman Nick Perry, D-Brooklyn. Perry proposed in A.416 allowing the governor or the appropriate health official to order the removal and detention of any person afflicted with a communicable disease in the event that there is a state of health emergency declared by the governor in relation to such disease. Perry’s proposal was first introduced in the 2015-16 legislative session after an ebola scare and was reintroduced in 2017-18, 2019-20 and 2021-22 sessions.

The bill was first proposed in 2015 after a nurse defied quarantine orders after treating Ebola patients in Sierra Leone. The legislation never moved out of the Assembly Health Committee and companion legislation was never introduced in the state Senate, but a social media furor late in 2021 prompted Perry to withdraw the legislation and prompted a response from Richard Gottfried, D-New York City and Assembly Health Committee chairman, who said the legislation had no chance of making it onto a state Assembly Health Committee agenda, which is required to bring the bill to the Assembly floor.

“The core of the case is simple. It is a New York State separations of powers case,” Marcelle wrote in his affadavit in support to amend the lawsuit. “Governor Hochul and her Health Department used executive powers to promulgate an emergency regulation. The adoption of this regulation usurped the powers of the Legislature which has revoked the Governor’s emergency powers to deal with COVID by executive fiat. Moreover, the Legislature has spoken on the topic covered by 10 NYCRR Section 2.13 and the respondents are thus prohibited from violating the will of the legislature. (The rule) is the same sum and substance as a failed State Assembly bill A416. This bill failed for years to gain any support in the Assembly. There was never a sister bill produced in the state Senate. The bill’s author struck the bill from consideration in December 2021.”