ALBANY – New York State Senator George Borrello and his fellow plaintiffs, Assemblymembers Michael Lawler and Chris Tague and the organization Uniting NYS, have won their lawsuit challenging the constitutionality of a New York State Department of Health regulation on the grounds it violates the separation of powers.
The regulation at issue was 10 NYCRR 2.13, which establishes isolation and quarantine procedures for those who are suspected of having a communicable disease.
The proposed regulation was adopted as an emergency regulation on February 22, 2022 and has been renewed at 90-day intervals through July 20, 2022. It has also been published in the New York State Register for permanent adoption through the rulemaking process.
The rule would allow the Health Department to coordinate with a local health authority to mandate isolation and quarantine for individuals exposed to communicable diseases, even in locations beyond their own homes.
The provisions closely resemble the provisions in the controversial Assembly Bill 416, which was proposed prior to the pandemic and never received the legislative support required to move forward.
In a statement, Senator Borrello said, “the expansive emergency powers that were given to the Executive Branch during the pandemic set a dangerous precedent that was ripe for abuse. That is what occurred here. Reluctant to relinquish the unrivaled authority that accompanied New York’s ‘state of emergency’, the governor sought to improperly use the agency rulemaking process as another conduit for unilateral control. If we allowed that to occur unchallenged, it would be inviting further violations of the constitutional separation of powers.”
The ruling by Judge Ronald Ploetz of the State Supreme Court of Cattaraugus County cited the fact that there is already established Public Health Law 2120 governing isolation and quarantine which balances individual rights and the need for public safety.
The Judge notes that in Rule 2.13 there is “no such due process protections…The Commissioner has unfettered discretion to issue a quarantine or isolation for anyone, even if there is no evidence that person is infected or a carrier of the disease… Involuntary detention is a severe deprivation of individual liberty, far more egregious than other health safety measures… Rule 2.13 merely gives “lip service” to Constitutional due process.”
“This ruling is a victory for the citizens of New York State because it affirms that their power, through their legislative representation, cannot be usurped. Judge Ploetz clearly highlighted that the process the governor and the health department followed is illegal, unconstitutional and a violation of the separation of powers,” said Senator Borrello.
“I call on the governor and the attorney general to support the will of the people and their constitutional freedoms by abiding by this decision. There is no ambiguity in this ruling and pushing it further through the courts will be an unnecessary waste of taxpayer resources,” he concluded.