If you feel like you just got sucker-punched in the gut, join the club, my friends.
The court has dismissed our lawsuit, not because we are wrong in our arguments… no, no, indeed we are dead-right. In fact, the court did not even touch the merits of the case. How could they? Instead, the court unbelievably ruled that my plaintiffs somehow do not have standing to sue! If your brain is racing a hundred miles an hour right now trying to figure this out, don’t worry, you are definitely not alone. Every single person I have told about this court ruling, from my plaintiffs, to fellow attorneys, to family members, and so on, has been downright flabbergasted. Rightfully so. One of my family members told me I needed to break it down for her, like she was a Kindergartener. I’ll do the same for you now, because this issue is so crucial for you to understand, and then for you to explain to others.
What the Appellate Division court is saying by reversing the lower court and then dismissing our case for lack of standing is that they believe that Senator George Borrello, Assemblyman Chris Tague, Congressman Mike Lawler, and the citizens’ group Uniting NYS did not have the right to bring this lawsuit last year against the Governor and her DOH for their heinous “Isolation and Quarantine Procedures” regulation. Why not? Because according to this court, my plaintiffs were not injured by the regulation. Why not? Because the court seems to insinuate that the only person with the right to sue is someone who has been forcibly locked in their home against their will, or ripped from their home, taken from their loved ones, and thrown into a quarantine detention center, facility, institution, camp, etc. (pick your noun, doesn’t matter). The court insinuates that apparently only that person would be injured. Not my plaintiffs. The reason their “logic” is flawed is because we sued pursuant to the separation of powers doctrine, arguing that the Governor and her DOH lacked the constitutional authority to make that horrendous regulation in the first place. In other words, in short, my legislator-plaintiffs were injured because Hochul and her DOH (Executive Branch) stole the legislators’ power to make law (Legislative Branch) when they created the quarantine reg which was a law (despite the fact that the DOH called it a regulation). The trial court correctly ruled in our favor last summer, and struck the reg down for that exact reason, amongst others.
If you are still scratching your head wondering how on earth is it possible that the Executive Branch stealing a power from the Legislative Branch does not constitute an injury to the members of the legislature, then join the club! Of note, it was so obvious to the trial court judge last year that my plaintiffs had standing, that he didn’t even discuss it in his decision. You can read that decision here if you’re interested.
I’m sure you have a thousand questions, so I’ll try to predict and answer some here:
Which court issued this decision?
It is the New York State Supreme Court, Appellate Division, in the Fourth Judicial Department. It is the middle court in the three levels of NYS courts, meaning, we began last year at the trial court level (NYS Supreme Court in Cattaraugas County). We won there. Then the Governor appealed to the next court which is the Appellate Division, and that is who reversed the trial court, and dismissed our lawsuit.
Who were the judges?
It was a panel of 5 judges that decided the appeal. They are all appointed by a governor. On my panel I had 2 Hochul appointees, 2 Cuomo appointees, and 1 Pataki appointee. You can watch the oral arguments from September here. The Attorney General’s office argued first and starts at 48:00 minute mark. Then I was next, and that starts at 1:02:35 mark.
Is there another court above this one that I can appeal to now?
Yes. The final and highest court in New York State is the Court of Appeals. It sits in Albany, and is presided over by a panel of 7 judges. They, too, are all appointed by a governor. They do not hear all cases that apply to the court (similar to the US Supreme Court), so I would have to draft a motion to try to convince the high Court to hear our case!
Now that this court overturned the lower court’s decision, will Rule 2.13 (the quarantine regulation) be re-instated?
Unfortunately, this court has opened the door and paved the way for Hochul and her DOH to re-issue this anti-freedom, anti-American regulation. Fire at will, is what the court has proverbially told them. There is nothing stopping the tyranny of the Executive Branch now.
Does Rule 2.13 allow Hochul and her DOH to set up actual quarantine camps?
The reason the public has dubbed this regulation the “quarantine camp regulation” is because the language in the reg makes it crystal clear that the DOH can pull you from your home (and your life) and, with the force of police, hold you anywhere they deem appropriate, including “other residential or temporary housing”… Remember, the reg says they don’t have to prove you are sick, they can hold you for however long they want, and there is no way for you to get out of lock up or lock down (unless you get a lawyer and sue them)!!! You can read articles I’ve written and interviews I have done about the reg and the lawsuit on my Substack here, or on my website: www.CoxLawyers.com
By the way, I fact-checked the Associated Press’ phony “fact check” article they ran shortly after my oral arguments in September, and I determined their article to be FALSE. It’s particularly surprising because that AP reporter contacted us (my plaintiffs and me) for clarification prior to publishing her false article. Clearly she ignored what we said! Anyway, this dystopian regulation absolutely allows Hochul and her DOH to institute quarantine locations, whether you call them facilities, institutions, halls, or camps, it matters not. It’s still unconstitutional!
What do my plaintiffs think?
Obviously, they are very upset by this decision. An official press release will go out shortly. Stay tuned, and of course I will share it with you via Substack and my Twitter… @Attorney_Cox
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