Sen. George Borrello, R-Sunset Bay, speaks in 2022 about a lawsuit he has filed along with two Republican Assemblymembers challenging isolation and quarantine rules proposed by the state Health Department.

After a three-month delay, New York state has finally filed its appeal of a state Supreme Court decision halting the state’s new proposed isolation and quarantine rules.

The state argues State Supreme Court Justice Ronald Ploetz of Cattaraugus County erred in four aspects of his decision to prevent the state from implementing the new rules: that Sen. George Borrello and two fellow legislators didn’t have standing to sue; that the proposed rule doesn’t conflict with existing state Public Health Law but instead clarifies it; that the new rule doesn’t conflict with any of the laws Borrello and his fellow lawmakers cited; and the proposed rule advances the mission the state Legislature gave to the state Health Department.

The brief, filed on behalf of Attorney General Letitia James by Jonathan Hitsous, assistant solicitor general, argues the Fourth Department Appellate Division should rule first on the issue of standing before moving to the other arguments the state makes. The lawmakers’ lack of standing, according to Hitsous’ brief, stems from the fact the lawmakers themselves didn’t suffer any “personal and concrete” injuries from the proposed change to isolation and quarantine rules.

“But even if this court were to reach the merits, it should find that the isolation and quarantine rule is a lawful exercise of DOH’s rulemaking authority,” Hitsous wrote. “Contrary to Supreme Court’s conclusions, the rule does not conflict with the Public Health Law, but complements it by clarifying and elaborating on terms used therein. For similar reasons, the isolation and quarantine rule does not encroach into the legislative sphere. Rather, it implements the policy choices the Legislature set forth across multiple provisions of the Public Health Law. And insofar as Supreme Court suggested that the rule violates substantive due process, it ignored the close connection between the rule and DOH’s mission to control communicable diseases, as well as the protections in place to ensure the rule’s consistent and fact-driven application. This Court should reverse Supreme Court’s order and dismiss the hybrid action either for lack of standing or on the merits; if the latter, the Court should declare the isolation and quarantine rule valid.”

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.

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.

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.

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.

“It is disappointing, but not a surprise, that state officials have chosen to pursue an appeal of Judge Ploetz’s ruling declaring Rule 2.13 unconstitutional and “null and void.” Their actions are an egregious waste of taxpayer dollars and an attempt to defend an indefensible policy. The constitutional separation of powers and the right of due process are principles that cannot be compromised,” Borrello said in a statement Wednesday. “We are committed to helping attorney Bobbie Anne Cox, who has selflessly led this fight, see this case through to its conclusion.”