A New York State appeals court panel has reinstated a potentially Draconian public health regulation promulgated by Governor Kathy Holchul’s administration. The regulation, known as 10 NYCRR 2.13 — or Rule 2.13, established isolation and quarantine procedures for those who are suspected of having a communicable disease. It was adopted as an emergency measure on February 22, 2022, and remained in force until a state Supreme Court judge struck it down in July 2022.
Reminder: unless you watched a lot of Law & Order, you are going to get confused about New York’s court system. In New York, the lowest judicial level is the New York Supreme Court. The intermediate level, which is where this story takes place, is called the Appellate Division. The highest court in New York is the New York Court of Appeals.
As we’ve frequently discussed on this site, one of the byproducts of the 2020 “pandemic” was governments seizing upon the COVID panic to create a “public health exception” to the US Constitution. This led to people being arrested for being on the beach, state police breaking up funerals and family gatherings, bizarre mask-wearing rules, travel restrictions, and on and on.
Rule 2.13 came into effect when Holchul’s minions took an existing state law governing how infectious disease outbreaks were to be handled and made it a lot better. And by better, I mean fascist.
The change in the regulation allowed public health Karens to order anyone into quarantine, either at home or at some government-specified location, upon suspicion of infection. Your doctor has the duty to order you into quarantine:
Every attending physician shall immediately, upon discovering a case or suspected case of a highly contagious reportable communicable disease, cause the patient to be appropriately isolated and contact the State Department of Health and the local health authority where the patient is isolated and, if different, the local health authority where the patient resides.
While the rule repeatedly says that everything will be conducted “consistent with due process of law,” the fact is that you are imprisoned first. Your freedom is restored whenever the state gets around to scheduling a hearing for your case.
One of the most ominous changes was in how quarantine was to be administered. Police could be used to enforce quarantine but the health department is required to “monitor such person to ensure compliance with the order and determine whether such person requires a higher level of medical care.” This implies electronic monitoring of individuals in the home and access to your home by health department employees without any sort of Fourth Amendment protection…because it is a rule, not a law…and their motives are totally selfless.
The kicker in the quarantine section specifies, “isolation locations may include home isolation or such other residential or temporary housing location that the public health authority issuing the order determines appropriate.” This calls to mind Australian quarantine camps.
Nov 2021 – Police set up checkpoints after several wards escaped from quarantine camps in Australia’s Northern Territory. Every escapee who was caught tested negative for COVID. 61/pic.twitter.com/X04pm46Ghu
— Michael P Senger (@michaelpsenger) May 23, 2023
Ass. Press did a “fact check” that found nothing at all was going on: New York Gov. Kathy Hochul is not trying to create ‘quarantine camps.’ As you can probably guess, they conclusively proved that no one in Hochul’s administration ever mentioned “quarantine camps” without bothering to address the underlying issue. Under this rule, a state health official could show up at your door, say they think you are infected, and ship you off to a tenement in The Bronx or a shack in the Adirondacks. Your ability to contest this order would take place after you were in the “camp.” I’m using quotation marks to show the fact-check children that I’m not saying there would be “camps.”
In April 2022, three Republican state legislators and a citizen’s group sued Gov. Kathy Hochul, New York State Commissioner of Health Mary Bassett, the New York State Department of Health, and the Public Health and Health Planning Council, alleging that the Rule 2.13 violates the separation of powers. More specifically, they claim that the state Department of Health, as an agent of the executive branch, did not have the authority to enact the isolation and quarantine procedures contained in Rule 2.13 as they are not authorized under the legislation upon which the regulation is based.
The judge was brutal.
Judge Ploetz evaluated the above factors in view of the preexisting provisions contained in Section 2120 of the New York Public Health Law (PHL 2120). PHL Section 2120, enacted by the legislature in 1953, establishes a procedure for obtaining a quarantine or isolation order in light of a highly communicable disease. In weighing the above factors, Judge Ploetz concluded that the adoption of Rule 2.13 was invalid. Judge Ploetz found that PHL Section 2120 balances individual rights and the need for public safety, whereas Rule 2.13 “contravenes the procedures set forth in PHL Section 2120 and ignores the balancing act between an individual’s rights and the need for public safety.”
In discussing due process protections, Judge Ploetz stated that “[w]hile Rule 2.13 provides that isolation and quarantine must be done ‘consistent with due process of law’ and the detainee has the right to seek judicial review and the right to counsel, these protections are after-the-fact, and would force a detainee to exercise these rights at a time when he or she is already detained, possibly isolated from home or family, and in a situation where it may be difficult to obtain legal counsel in a timely manner.” Judge Ploetz also stated that Rule 2.13 merely gave “lip service” to constitutional due process because the law could conceivably grant the commissioner unfettered discretion to force anyone into isolation or quarantine, despite a lack of evidence that a person was actually infected with COVID-19. He noted that, “[i]nvoluntary detention is a severe deprivation of individual liberty, far more egregious than other health safety measures, such as requiring mask-wearing at certain venues,” and “[i]nvoluntary quarantine may have far-reaching consequences such as loss of income (or employment) and isolation from family.” As such, Judge Ploetz permanently enjoined enforcement and readoption of Rule 2.13.
The state appealed.
The appeal was anticlimactic. The court ruled that the plaintiffs didn’t have standing in the case as they had not been personally harmed. Judge Ploetz’s decision was set aside, and the rule reinstated.
The court found that the GOP officials and the organization did not sufficiently establish why they were so severely harmed, and that the trial court failed to adequately rule on the merits of whether the petitioners had a right to bring the case in the first place.
The court said the state legislature could take up the problem any time it wished, but there was nothing to see here.
With the rule instated, the state has the right to place any communicable disease under the coverage of Rule 2.13. The state has the authority to come into your home, to confine you as they wish, and to monitor your compliance. You are at risk of going to prison for disobeying. Your right to contest the basis of your “quarantine” doesn’t start until you begin confinement. Unless you die, you will be out of quarantine before you see a judge, and if you make noise, you’ll be told that because you are not in quarantine, you don’t have standing to fight the action.
What we can see from this is that the government in New York learned nothing from the pandemic. There was no introspection over the grotesque overreach of the government. There is no intention to limit the power of the government. In fact, from what we’ve seen around the country, everything from gun violence to racism declared a “public health crisis,” potentially opening the way for the coercive power of the state, untrammeled by the Bill of Rights, to suppress those “threats.”
We can also that states like New York have had their hubris reinforced and have learned valuable tactics on how to oppose any legal challenges they face.