A state Supreme Court justice has ruled the state’s proposed new isolation and quarantine rules violate the state constitution and merely give “lip service” to constitutional due process.
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 are named in the lawsuit filed by state Sen. George Borrello, two Republican state Assembly members and NYS United.
Oral arguments were held in May in the courtroom of state Supreme Court Justice Ronald Ploetz in Cattaraugus County. Ploetz issued his decision late Friday, ruling the proposed rules as violating the state constitution until the state Legislature acts to change the law.
Among the changes being fought is 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. 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.
Borrello and his fellow plaintiffs had argued the Health Department’s proposed rules violated due process rights for those being involuntarily confined, particularly when compared to existing state Public Health Law used throughout the COVID-19 pandemic.
Assemblyman Andrew Goodell, R-Jamestown, and Assemblyman Joe Giglio, R-Gowanda, laid out similar concerns in an amicus curie, or friends of the court, brief that the state’s attorneys tried to have withheld from Ploetz’ consideration. Much of the legal reasoning Ploetz relied upon for his decision came from the brief filed by Goodell and Giglio.
Deciding whether an administrative agency is overstepping its legal authority is based upon the New York court case Boreali v. Axelrod, which lays out a four-point test for judges to use to weigh administrative rules.
The state, in the view of Ploetz, failed three of the four Boreali tests. Particularly, 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.
“The efficacy of isolating or quarantining infected individuals has been known to mankind since Biblical times, and probably before. Respondents offered no scientific data or expert testimony why Rule 2.13 was a necessary response to combat Covid-19,but instead contend only that it would provide a quick and nimble approach to combatting the pandemic,” Ploetz wrote. “Nevertheless, during oral argument of this matter, at a time when we hope that the worst of the pandemic is behind us, counsel for the Respondents were unable to cite any instance where the procedure set forth in Rule 2.13 was actually utilized.”
Chief among the complaints raised in Borrello’s lawsuit and Goodell’s amicus brief was lack of due process considerations given to those who would be involuntarily confined due to an infectious disease. They compared the state’s proposed rules to both existing state Public Health Law as well as a legislative proposal by Assemblyman Nick Perry, D-Brooklyn, that had been drafted during the 2015 ebola outbreak but never considered by the legislature for passage. Existing law allowing involuntary detention or hospitalization triggers the right to counsel and a hearing before an independent magistrate before an involuntary isolation order is 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. And the state’s proposed rules also extended enforcement to local law enforcement, something not included in current law and a point debated early during the COVID-19 pandemic among local police officials when former Gov. Andrew Cuomo said local law enforcement had such authority.
The Health Department rules say those who would be quarantined involuntarily would have due process, but Ploetz was not convinced.
“Involuntary detention is a severe deprivation of individual liberty, far more egregious than other health safety measures, such as requiring mask wearing at certain venues,” Ploetz wrote. “Involuntary quarantine may have far reaching consequences such as loss of income (or employment) and isolation from family. While Rule 2.13 provides that isolation and quarantine must be done ‘consistent with due process of law” and the detainee has the right to seek a judicial review and the right to counsel, these protections are after-the-fact, and would force the detainee to exercise these rights at a time when he or she is already detained, possibly isolated from home and family, and in a situation where it might be difficult to obtain legal counsel in a timely manner. Rule 2.13 merely gives “lip service” to Constitutional due process.”