Bottom right, state Sen. George Borrello looks on as his attorney, Bobbi Flowers Cox, argues before five Fourth Department Appellate Division justices Wednesday in Rochester.

The fate of an expansion of isolation and quarantine rules in New York state is now in the hands of five Fourth Department, Appellate Division judges.

Oral arguments were heard Wednesday in Rochester in the state’s appeal of a state Supreme Court decision by Judge Ronald Ploetz in Cattaraugus County invalidating the state Health Department’s administrative rulemaking that would expand the state’s power to isolate and quarantine state residents or clarify existing procedures, depending on which side of the argument one falls into. Jonathan Hitsous argued the state’s appeal of Ploetz’s order while Bobbie Flower Cox argued on behalf of state Sen. George Borrello, Assemblyman Michael Lawler, Assemblyman Chris Tague and Uniting NYS LLC.

The bulk of the judges’ questions during the roughly 25-minute oral argument focused on whether or not the Health Department had authority under existing state law to expand its isolation and quarantine authority. Both Judge Tracey Bannister and John Curran asked about the state’s statutory authority, with Curran asking both attorneys to elaborate on that argument specifically.

“For my purposes all I’m asking about is 225 5-J,” Curran said to Cox. “It talks about establishing regulations in regard to contact or communication with or use of infected premises, places or things. Does it apply to people?”

Hitsous argued there are two statutes that give the state Health Department the ability to create Public Health Law Section 2.13, the contested section of law in Borrello et al. v. Kathleen Hochul et. al., Public Health Law 2120 and Section 225, paragraph 5, subsection j, of the Public Health Law. Hitsous said Section 2100’s stipulation that every health officer may provide for care and isolation of cases of communicable disease is enough statutory authority to clarify the isolation and quarantine rules while adding the Section 225 language allowing the state’s Sanitary Code to establish regulations “in respect to contact or communication with or use of infected premises, places or things and prescribe the method or methods for the purification and cleansing of the same before general intercourse with the said premises, places or things, or use thereof is allowed.” support the state’s action.

“I know that there was an argument raised that we were invoking 5-a, which is a generalized power all matters of public health,” Hitsous said. “That certainly support this rule but 5-J is more specific. It says the sanitary code shall include measures regarding the contact and communication with infected premises that is reasonably read certainly in conjunction with 2100 to relate to who can enter and leave those premises.”

Cox counters that both sections of law show overreach by the Health Department and an expansion of the state’s authority outside its expressly role expressly given by the state Legislature. She said Section 2100 gives specific power to local boards of health and the law’s primary use of hospitals for isolation of communicable disease cases while Section 225 deals with the cleaning of places, things and premises to prevent the spread of communicable diseases but specifically doesn’t mention people.

“It does not (apply to people),” Cox said in response to Curran’s question. ” … 225 5-J says nothing about isolating or quarnatineing human beings. So it says they can establish regulations in respect to contact or communication with or use of infected premises, places or things. That’s it. So opposing counsel is saying well, that automatically kind of would assume we can regulate people that go in and out of those places. It’s absurd. It doesn’t even pass the straight face argument here when countless cases from the Court of Appeals have held when the legislature wants to delegate their power to an agency they have to speak clearly, especially in the area of constitutional rights.”

There was also lengthy debate over whether or not the actions in proposed Section 2.13 are consistent with existing state public health law. Cox argued the process used in Section 2.13 is significantly different than the process enacted by the state Legislature in 1953 when Section 2100 of the state Public Health Law was written. Cox said existing state law allowing involuntary detention or hospitalization triggers the right to counsel and a hearing before an independent magistrate in order for an involuntary isolation order to be granted. The state’s proposed rules gave the state Health Commissioner broad discretion to issue a quarantine or isolation, even if there was no evidence a person was infected or a carrier of disease, and allowed the commissioner to set the length, terms and location of detention, not an independent magistrate as required in Section 2120 of the state Public Health Law.

“I think it’s clear that the appellants do not like our current New York state law, our policy on how we remove people from society if they are a public health threat,” Cox said. “They don’t like Section 2120 of the Public Health Law. They feel it’s not good enough in a time of emergency and they have made that very clear both at the trial court level and here on appeal. At the trial court level, when we had oral arguments last year, the Attorney General’s office was crystal clear that, in essence, this pandemic has shown us that we can’t have all these different courts around the state deciding if someone should be isolated and quarantined. We need here in Albany, the commissioner of health, we need to centralize power and control 19 million New Yorkers with the flick of a pen. So if they want to change the law, if they want to change the public health law and make it more centralized, if they want to take out the due process protections that are currently in our quarantine law, all they need to do is ask the legislature to change the law. It’s very simple.”

Hitsous argued Ploetz erred in relying a perceived conflict between state Public Health Law Section 2120 and proposed rule 2.13 as the reason rule 2.13 should be ruled unconstitutional, citing state Public Health Law 2100, 2180 and Chapter 25 of the Laws of 2020 as other areas of law that use the phrase isolation and quarantine.

“Virtually all of Supreme Court’s reasoning boils down to a misconception that isolation and quarantine is synonymous with civil commitment,” Hitsous said. “It’s not. The defining feature of civil commitment is physical restraint. You are taken against your will to a place where you cannot leave. We acknowledge that PHL 2120, which is the law on which Supreme Court relied, provides for a civil commitment process and it also provides for protections. Where Supreme Court errs is in finding there is a conflict with that statute. If you look at the text of rule 2.13 there is nothing in that text that invariably leads to the conclusion that the Department of Health can somehow take people away from the community and lock them up in situations where they can’t leave. It’s true the Department of Health can order a person to isolate and quarantine but the Department of Health can order many people and many entities to do all kinds of things. … We acknowledge if one of those mechanisms is to physically remove somebody to a hospital the one and only way the department or a locality can effectuate that is by following the procedures in 2120. I hope that one day nobody tries to remove somebody and claims 2.13 is the authority to do so. If that day ever comes the effected person would have a very strong challenge that the order of isolation and quarantine itself is unauthorized. But that’s not this challenge. This is a facial challenge that rests on the premise that PHL 2120 somehow is the sole legislative policy announced on isolation and quarantine.”