Assemblymen Andrew Goodell and Joe Giglio are weighing in on Sen. George Borrello’s lawsuit challenging new state isolation and quarantine rules.

Goodell, Giglio and Assemblyman William Barclay, R-Pulaski, have filed an amicus curie brief supporting Borrello’s lawsuit against Gov. Kathy Hochul, Health Commissioner Mary Bassett, the state Health Department and state Public Health and Health Planning Council.

In the filing, Goodell and Giglio argue the state Health Department can’t adopt regulations that give it power inconsistent with existing state Public Health Law, that the Health Department can’t grant itself powers that violate fundamental due process and that the Health Department can’t grant itself power that the state Legislature refused to grant.

“The new Health Department regulations are inconsistent with the procedural requirements contained in the Public Health Law, purport to grant the New York State Department of Health (and attending physicians) authority that far exceeds their statutory authority and usurp legislative power,” Goodell and Giglio wrote. “The regulations also violate fundamental due process requirements by granting the Health Department and private physicians the power to use law enforcement personnel to confine individuals who are merely suspected of having a communicable disease, without due notice, without an evidentiary hearing and without a judicial determination. For all the above reasons, the court should rule that the new regulations are null and void.”

Existing Public Health Law, Goodell and Giglio said, clearly states someone can only be quarantined if they are “afflicted” with a communicable disease or are a carrier and are a “menace” or a “source of danger” to others. Forced isolation can only be ordered by a magistrate after an investigation. There are six steps that have to be taken before someone is isolated or quarantined under current law.

The proposed changes use broader language, saying quarantine or isolation orders can be issued as the state health commissioner determines are appropriate. Attending physicians are required to immediately isolate patients who have infectious diseases or are suspected of having an infectious disease. According to Goodell and Giglio, physicians who do not immediately isolate a person could face discipline, including the loss of a medical license. Goodel and Giglio cite several court cases they say place limits on governments taking residents’ personal freedom and liberty while arguing the current Public Health Law remains constitutional because of their due process protections for someone public health officials believe may be dangerous to the community.

Goodell and Giglio also took aim at the use of law enforcement personnel to enforce the isolation and quarantine. Current law, they said, allows civil penalties ranging from $2,000 to $10,000 per violation; an injunction by the state health commissioner or a designee; and fines and jail time. Each of those options require due process.

“The reference to the use of ‘law enforcement personnel’ is particularly troubling, and reflects another dramatic expansion of Health Department power. … As with all similar criminal actions, such defendants would be entitled to be immediately released without bail (under our current ‘bail reform’ laws) and would be entitled to a full evidentiary trial, with the right to cross-examine witnesses and present their own evidence, the right to have an attorney and the right to have an impartial judge,” Goodell and Giglio wrote. “The new regulatory provisions, however, authorize the use of law enforcement personnel to enforce an isolation order requiring the immediate physical confinement of an individual, without notice, without a hearing and without a court order.”

Lastly, the brief attempts to explain the significance of the failed legislation sponsored by Assemblyman Nick Perry, D-Brooklyn. The legislation was first introduced in 2015 when ebola was threatening to become an issue in New York state. The legislation was reintroduced every year and never advanced out of committee. No state Senator introduced the bill in the state Senate and, after the bill received widespread attention late in 2021, Perry pulled the legislation from consideration. Goodell and Giglio argue the withdrawal is legally significant in Borrello’s lawsuit because past court cases have held, notably in Boreali v. Axelrod (1987) that repeated failure by the legislature to arrive at an agreement in the face of substantial public debate and lobbying by a variety of interested factions is relevant. In the Boreali case, the state Court of Appeals held that inaction by the state Legislature “does not automatically entitle an administrative agency to take it upon itself to fill the vacuum and impose a solution of its own.” The court, in Boreali, placed the onus on legislators to resolve such issues rather than appointed administrators.

“Ironically, the Perry legislation contained many more procedural and due process protections than the new Health Department regulations, including limiting its applicability to a declared state of emergency, requiring ‘clear and convincing evidence’ of the danger posed by the individual, requiring the Health Department to act with ‘due diligence’ to verify whether the person was actually infected, requiring an administrative hearing within three business days, and requiring a court order for any detention exceeding five days,” Goodell and Giglio wrote. “None of these due process protections are contained in the new Health Department regulations. Although administrative regulations play an important role in fleshing out the details needed to administer statutory provisions, these regulations must be within the scope of the legislative grant. Administrative agencies do not have the constitutional authority to make their own laws, expand their own power or circumvent existing laws. Only the state Legislature can change the statutory procedures, not the Health Department.”