Governor appeals after New York’s highest court finds her emergency health rule violated due process and separation of powers

/

“Involuntary detention is a severe deprivation of individual liberty, far more egregious than other health and safety measures…Rule 2.13 merely gives lip service to constitutional due process.”

–Judge Ronald Ploetz, New York State Supreme Court

New York Gov. Kathy Hochul, D, and Attorney General Letitia James are appealing a decision by State Supreme Court Judge Ronald Ploetz after he found that the state’s forced quarantine procedures violated New York state law and ignored its residents’ due process rights.


Quick Facts


10 NYCRR 2.13 was issued in response to the COVID outbreak, despite the fat that New York already had a public health law that had been in place for decades. The administrative rule, which was written by the executive branch without the input of the legislature, grants the Commissioner of Health the sole authority to determine who could be placed in isolated quarantine based on “suspicion” that someone might carry a communicable disease. The Commissioner is also given sole authority over how long the isolation lasts.

The rule has been renewed every 90 days since March 2020 when the COVID pandemic hit and it has been published in the New York State Register for permanent adoption.

In his ruling earlier this month, Ploetz found that the New York State Department of Health, as part of the executive branch, overstepped its constitutional role and violated the separation of powers doctrine when it issued 10 NYCRR 2.13.

Ploetz concluded that the Health Department ignored the existing public health law, which was enacted in 1953 and provided procedures for legally obtaining a quarantine or isolation order. These included requirements for a physician’s report, an investigation by a health officer, a hearing by a magistrate, and, if the person was quarantined, they would be discharged at the direction of the chief medical officer. The person also was afforded the right to counsel before quarantine.

By contrast, Ploetz wrote, Rule 2.13 “disregards any balancing of individual rights against public safety needs.”

Although he found Rule 2.13 to be invalid because it violated the existing and duly enacted public health law, he made it a point to discuss the egregious due process violations that Rule 2.13 perpetrated on New York residents. Ploetz wrote:

“Involuntary detention is a severe deprivation of individual liberty, far more egregious than other health safety measures, such as requiring mask wearing at certain venues. Involuntary quarantine may have far reaching consequences such as loss of income (or employment) and isolation from family. This goes beyond the public health law governing these types of orders that was already on the books before the pandemic.”

Moreover, Ploetz stated that despite a provision stating that “isolation and quarantine must be done consistent with due process of law,” Rule 2.13 “merely gives ‘lip service’ to Constitutional due process.”

Despite the court’s scolding, Hochul and James have appealed the ruling. State Sen. George Borrello, R, who brought the suit against the administrative rule, responded by saying, “Governor Hochul and Attorney General James are doing a disservice to New Yorkers in appealing Judge Ploetz’ ruling declaring Rule 2.13 unconstitutional and ‘null and void.’”

Borrello claimed that the appeal is about more than keeping this particular rule in place. Instead, he stated, “They are fighting to establish the rulemaking process as a backdoor channel for creating mandates and measures that rightly belong in the legislative realm. Defending and affirming the constitutional separation of powers was always the core of this lawsuit. The pandemic and the ’emergency’ authority it gave the Executive Branch has proven to be a powerful political tool the governor is reluctant to relinquish.”

The appeal echoes New York’s response to the Supreme Court’s decision in New York Rifle & Pistol Association v. Bruen, which struck down a century-old state law requiring those seeking a gun permit to provide a sufficient reason to carry one outside of the home and to go through certain training. The state was notoriously stingy with handing out permits. After the Court ruled that the law was unconstitutional, however, Hochul and the legislature passed a new law that went beyond the prior law and banned guns in nearly all public and private places. Any private location that does not expressly display signage affirming permission to carry a gun is considered restricted.

Legal challenges have since been filed against the new New York gun law.

What is it about New York that makes its current leadership want to ignore court decisions and its own laws and continue to strip away constitutional rights? It is normal for officials to appeal court decisions, but it is somewhat uncommon for them to continue to challenge after such a clear ruling from the state’s highest court. It is even more uncommon for a state to deliberately, vindictively, respond to the U.S. Supreme Court by accelerating its unconstitutional actions.

Rule 2.13 gave the Health Commissioner nearly unchecked power to restrict a person’s basic freedoms. The Commissioner could force anyone into isolation in order to stop the spread of any communicable disease (not just COVID) whether the person had the illness or not. A person’s only recourse came after being placed in quarantine. New York had suffered pandemics for centuries prior to March 2020, but this level of restriction in the name of public safety was never deemed necessary.

Now with the worst of COVID far behind in the rearview mirror, Gov. Hochul and the Health Commissioner wants to maintain the authority to force people out of their homes and into quarantine and isolation camps without checks on that power. Why?

Likewise, the state responded to the Court’s ruling that they had violated citizens’ right to bear arms for self-defense by further restricting that right. There are three branches of government, yet Gov. Hochul seems to believe that it is fully within her purview to do an end-run around both the legislative and judicial powers, not to mention the will of the people.

These are the actions of rogue tyrants who freely use their office to restrict the rights of citizens, regardless of what the existing law or the courts say.

Proverbs 29:1 says, “A man who hardens his neck after much reproof will suddenly be broken beyond remedy.”

New York’s stiff-necked leaders would be wise to listen to the rebuke of courts and defer to the rule of law rather than continue to abuse their power. As Proverbs 16:18 further warns, “Pride goeth before destruction and a haughty spirit before a fall.”