Governors who have used COVID-19 as an excuse to enlarge their executive powers through extended and expansive emergency orders may have encountered the first serious state-level roadblock by an upstate New York Supreme Court judge, who ruled against the New York governor’s abuse of public health law in a little known but critically important lawsuit. The decision is likely to have spillover effects in other states due to the constitutional issue of separation of powers. It may also alert citizens to the failure of their state legislatures to rein in out-of-control governors.

The lawsuit challenged “Isolation and Quarantine Procedures” Rule 2.13 (10 NYCRR 2.13), which allowed New York governor Kathy Hochul to use the state Department of Health to issue regulations allowing health officials to involuntarily quarantine and detain people diagnosed or suspected of being exposed to a communicable disease for indefinite periods of time, depriving them of freedom, due process, and property rights, all while avoiding legislative oversight.

Acting justice of the Supreme Court Ronald D. Ploetz ruled on July 8 that Rule 2.13 violates New York State law and is thus null, void, and unenforceable. He said that the Executive Branch had infringed on separation of powers, trampled on the constitutional due process rights of citizens, and ignored existing state law governing isolation and quarantine for serious contagious diseases.

The lawsuit was brought by Republican state senator George Borrello, Republican Assembly members Michael Lawler and Chris Tague, and the civil rights advocacy group Uniting NYS.

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