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Oral arguments heard in Borrello Et. Al. v. Hochul

Updated: Feb 25

ORAL ARGUMENTS HEARD IN STATE’S APPEAL OF BORRELLO ET. AL. V. HOCHUL The appeal is the state’s attempt to reverse lower court ruling that found Health Department overstepped its authority in adopting rule establishing isolation and quarantine regulations

Members of Uniting NYS outside the Supreme Court of the Appellate Division, Fourth Judicial Department prior to the hearing.

ROCHESTER, NY – Oral arguments were heard today in the state’s appeal of a lower court ruling that found Governor Hochul and the New York State Department of Health (NYSDOH) violated the constitutional separation of powers in adopting a regulation establishing isolation and quarantine procedures through the agency rulemaking process.

Originally filed in April 2022 in State Supreme Court of Cattaraugus County, the petitioners of the lawsuit are Senator George Borrello, Assemblyman Chris Tague, Assemblyman (now, Congressman) Michael Lawler and the organization, Uniting NYS. The rule at issue is 10 NYCRR 2.13.

The regulation gives NYSDOH and/or the local health authority the power to mandate isolation and quarantine orders for individuals with no proof they are sick or have been exposed to diseases listed in the regulation. It also provides the health authority with the ability to determine the isolation location, which may include facilities outside of one’s own home and even using law enforcement to do so.

Senator Borrello noted that the list of diseases in the regulation went far beyond COVID and included several that are not even communicable and therefore pose no public health threat. He said the list could be easily amended to include others.

“Rule 2.13 is a red flag that underscores the lingering authoritarian approach to governing, which is a holdover from the pandemic. 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,” said Senator Borrello. “The principle at the heart of our lawsuit is the constitutional separation of powers, which was violated by the administration’s actions. They overstepped their authority by attempting to enact such an expansive mandate. If we allowed that to occur unchallenged, it would invite further overreach.”

In his July 2022 ruling in favor of the petitioners, Judge Ronald D. Ploetz noted in his decision that the Legislature has already passed a law that covers this issue. He said, “…PHL 2120 was enacted by the Legislature in 1953 and provides a procedure for obtaining a quarantine or isolation order.” He further notes that “Rule 2.13 actually contravenes the procedures set forth in PHL 2120 and ignores the balancing act between an individual’s rights and the need for public safety.”

“Today we had oral arguments at the Supreme Court Appellate Division because the governor and her Department of Health are trying to get back the unconstitutional power to isolate or quarantine New Yorkers with no proof you are sick, no proof you have been exposed to a communicable disease, and they want the power to lock you up or lock you down for however long they want, without any stated procedure on how you can regain your freedom. Their horrendous regulation would allow them to use law enforcement to enforce their orders or isolation or quarantine against you. No right to an attorney or right to appeal the order until after you are locked up. Guilty until proven innocent! The trial court last year was absolutely correct in striking down this regulation. It has no place in our society. We are hopeful that the Appellate Court upholds the lower court decision so that the constitution can prevail,” said Bobbie Anne Flower Cox, Esq. of Cox Lawyers, PLLC, the attorney representing the petitioners.

Two amicus briefs in support of invalidating rule 2.13 were submitted, one by Assembly Members William Barclay, Andrew W. Goodell and Joseph M. Giglio and another by the New Civil Liberties Alliance, an advocacy group headquartered in Washington, D.C.

“Our legal effort challenging the State of New York in court is a ‘David versus Goliath’ story. The state has teams of lawyers and significant resources with which to appeal Judge Ploetz’ ruling. However, wastefully spending taxpayers’ hard-earned dollars to try to overturn a judicial decision which is on solid constitutional ground will only further confirm that this is an Executive Branch that views itself as above the law,” said Senator Borrello. “Maintaining the separation of powers is critical to maintaining democracy. We will fight as far as we have to go to uphold that doctrine.”


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