In April 2022, attorney Bobbie Anne Cox filed suit in the New York State Supreme Court against Gov. Kathy Hochul (D-NY) and the New York State Department of Health. Borrello v. Hochul sought to prevent implementation of 10 NYCRR 2.13, or Rule 2.13, a DOH regulation titled “Isolation and Quarantine Procedures,” which empowered public health officials to issue isolation and quarantine orders for New York citizens “to control the spread of a highly contagious communicable disease.”

According to Cox, the regulation leaves citizens vulnerable to multiple violations of their civil rights. “This regulation renders New Yorkers guilty until proven innocent,” she said.

A quick review of the rule’s text confirms that concern.

Nothing in Rule 2.13 requires health officials to prove that the targets of their orders have a communicable disease. No due process is granted prior to detainment, and no advance warning of intent to detain is required. Health officials are instructed to “monitor” citizens placed in quarantine or isolation and permitted to use law enforcement to manage compliance with their orders. One’s imagination does not have to be large to conjure up the many terrifying ways in which bureaucrats with clipboards might wield this unprecedented power.

Most critically, as the lawsuit Cox and her team filed against the regulation pointed out, the state had no authority to issue Rule 2.13 in the first place. “This case is all about separation of powers between the Executive branch of government (the Governor and DOH) vs the Legislative branch of government (our State Senators and Assembly Members),” Cox argued.

In July of 2022, New York Supreme Court Judge Ronald Ploetz agreed. He struck down the regulation on the grounds that it was unconstitutional and enjoined those who created it from enforcing or readopting it.

His ruling was a decisive but short-lived win. Hochul and Attorney General Letitia James quickly filed an appeal. And on Nov. 22, a New York appeals court panel ruled that Rule 2.13 could be reinstated on the grounds that the plaintiffs in Borrello v. Hochul had no “standing,” thus voiding Ploetz’s decision.

It was an astonishing ruling given that New York state Sen. George Borrello is the plaintiff named in the title of the suit. He was joined by then-Assemblyman Mike Lawler, now a U.S. congressman, and Assemblyman Chris Tague in the action, all Republicans. As state legislators charged with the duty of making state law, they would appear to have obvious standing in a case arguing executive branch overreach into the domain of the legislature on which they serve.

The ruling may have defied logic, but it did come with the benefit of allowing panel members to avoid commenting on the contents of Rule 2.13.

On Nov. 27, Borrello wrote to Hochul reminding her of those contents. He asked her to refrain from reissuing the regulation, citing citizens’ concerns about its “serious constitutional issues” and pointing out that Rule 2.13 “conflicts with existing Public Health Law 2120, which was adopted by the Legislature more than 70 years ago and contains the due process protections that Rule 2.13 lacks.” He has not received a response and noted that he does not know if the Department of Health plans to reinstate the rule. He knows of no obligation on the agency’s part to inform him or his colleagues if it does.

Cox is working on her appeal, waiting to hear if her case will be heard. She has been fighting for two years pro bono and has no intention of stopping. “If people knew about the regulation, everything about this, they would be outraged,” she said.

She said she intends to use the law to safeguard New Yorkers from this regulation, and those that might follow if it stands, but she noted that “laws cannot cure everything. The answer is to have a Governor that would never allow a department to issue a regulation like this. … We need people running our state who honor and appreciate our constitution.”

For that result, she is looking to the people of New York.

Rebecca Sugar is a writer living in New York. Her column, The Cocktail Party Contrarian, appears every other Friday in the New York Sun.