The Fourth Department Appellate Division Court of Appeals’ decision to dismiss a lawsuit brought by Sen. George Borrello and two fellow state legislators isn’t surprising for those familiar with the court.
The same court took a similar route with Jamestown’s annexation of the Board of Public Utilities’ Dow Street substation in Ellicott the first time that case came before the court, ruling paperwork hadn’t been filed in time and not making any ruling on the substance of the case before it. Before the court can rule on the merits of an argument it has to make sure the case is properly before the court in the first place.
A citizen could bring a lawsuit, but that process will take time and money with no guarantee of success.
We’d prefer the legislative approach that, in our view, should have happened anyway. We agree with Borrello and Assemblyman Andrew Goodell, R-Jamestown, who note even prior legislative approaches introduced by legislative Democrats better protected the rights of the individual than the proposed state Health Department rules generated during the height of the COVID-19 pandemic. The best solution to dealing with state Health Department rule 10 NYCRR 2.13 is legislation, passed during open session with public debate by our elected officials.
“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,” Goodell and Assemblyman Joe Giglio, R-Gowanda, wrote in an amicus curie brief when the case was still in state Supreme Court in Cattaraugus County.
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 state Health Department has proposed broader language that removes due process protections at the beginning of the isolation and quarantine process.
In our view, this matter should be taken up collectively by Republicans and Democrats in the state Legislature. If there are to be changes to isolation and quarantine rules, they should properly protect the public’s rights rather than merely paying lip service to due process.