The New York Supreme Court on Nov. 17 dismissed a lawsuit challenging the constitutionality of the isolation and quarantine procedures the state established during the COVID-19 pandemic, saying the Republican lawmakers and the advocacy group that brought the case lacked standing to sue.
The suit was originally filed in April 2022 against Gov. Kathy Hochul and her administration by a coalition of Uniting NYS and three Republicans: state Sen. George Borrello, Assemblyman Chris Tague, and Assemblyman Michael Lawler, who is now a member of the U.S. Congress.
The coalition challenges what’s known as Rule 2.13, a set of regulations that gives state and local health authorities the power to place New Yorkers merely suspected of having an infectious disease such as COVID under mandatory isolation or quarantine.
Under the February 2022 rule, “whenever appropriate to control the spread of a highly contagious communicable disease, the State Commissioner of Health may issue and/or may direct the local health authority to issue isolation and/or quarantine orders, consistent with due process of law, to all such persons as the State Commissioner of Health shall determine appropriate.”
The isolation locations, according to Rule 2.13, may include one’s own home, a general hospital, or “other residential or temporary housing,” subject to what the health agency issuing the order deems “appropriate.” The rule also allows the health agency to, “whenever appropriate, coordinate with local law enforcement to ensure that such person comply with the order.”
“Rule 2.13 is a red flag that underscores the lingering authoritarian approach to governing, which is a holdover from the pandemic,” Mr. Borrello said in a statement, arguing that those regulations, made through a rule-making process as opposed to a legislative process, violated the principles of separation of powers enshrined in the New York State Constitution.
“The unprecedented emergency powers given to the Executive Branch became the ‘new normal’ for two years and gave rise to certain abuses, like this dangerous isolation and quarantine regulation,” he added. “If we allowed that to occur unchallenged, it would invite further overreach.”
In a ruling handed down in July, New York Supreme Court Judge Ronald Ploetz sided with the plaintiffs, effectively rendering those public health rules null and void. New York Attorney General Letitia James appealed that ruling.
On Nov. 17, however, the Fourth Department of the New York Supreme Court’s Appellate Division overturned Mr. Ploetz’s ruling, saying that the three current and former state lawmakers have failed to prove a “direct injury” caused by the alleged violations.
“The legislator petitioners specifically alleged that respondents violated the separation of powers doctrine because the ability to make laws lies with the legislature,” a panel of five judges wrote in the opinion.
“Inasmuch as the legislator petitioners merely asserted an alleged harm to the separation of powers shared by the legislative branch as a whole, they failed to establish that they suffered a direct, personal injury beyond an abstract institutional harm.”
When it comes to the legal standing of Uniting NYS, the judges concluded that the organization “failed to demonstrate that at least one of its members would have standing to sue.”
“The organization petitioner did not claim that any of its members had been personally subjected to isolation and quarantine under any regulation,” the opinion read.
They also noted that the affidavits provided by some Uniting NYS members concerning the potential impacts of an isolation and quarantine order on fellow New Yorkers failed to “articulate any direct injury” other than “the injury every citizen allegedly suffers” from the Hochul administration’s action.
“We conclude for the same reason that the organization petitioner lacks standing to bring the challenge in its own name,” they added.
The decision, according to the 5-judge panel, will not shield Rule 2.13 from court challenges in the future.
“Inasmuch as the legislature retains its power to address the regulation and there exists a large pool of potential challengers to the regulation who could assert a concrete and particularized harm, we conclude that this is not a case where to deny standing to these petitioners would insulate government action from judicial scrutiny,” they wrote.
Uniting NYS expressed frustration over the ruling, saying that the appellate court “shamefully overturned our win.”
“They have ruled against the will of the people,” Bobbie Anne Flower Cox, the attorney representing the petitioners, wrote in a blog post.
“The court seems to insinuate that the only person with the right to sue is someone who has been forcibly locked in their home against their will, or ripped from their home, taken from their loved ones, and thrown into a quarantine detention center, facility, institution, camp, etc.,” Ms. Cox wrote, calling such logic “flawed.”
“My legislator-plaintiffs were injured because Hochul and her DOH stole the legislators’ power to make law,” she argued.