My quarantine lawsuit battle against the governor of New York and her dystopian Department of Health has been getting a lot of attention lately now that the appellate court recently astonished New Yorkers and interested parties across the country (and the world), with their recent calamitous decision to overturn my victory at the trial court. As I work on my appeal to overturn this stunning decision, I continue to receive many questions about the case, its history, and the horrendous quarantine regulation that is at the heart of it all. I’ve written extensively on this topic, so I thought it helpful if I pull various parts of my previous articles, and condense them into a succinct article so you can have the pertinent information at your fingertips. Here it is…
Imagine a land where the government has the power to lock you up because the unelected bureaucrats in the Health Department think that you might, possibly have a communicable disease. They don’t have to prove you are sick. They don’t have to prove you are a health threat to others. They just need to think that, maybe, you were possibly exposed to a disease. And when I say “lock people up,” I mean lock you in your home or force you from your home into a facility, detention center, camp (pick your noun) that they get to choose and you must stay there for however long they want. No time limit; so it could be for days, weeks, months, or years….
Now imagine that there is no age restriction, so the government can do this to you personally, or to your child, or to your grandchild, or to your elderly parent, or to your ailing grandparent. The nightmare continues because you have no recourse. No chance to prove that you aren’t actually infected with the disease. No chance to confront your jailers, see their supposed evidence against you or challenge their quarantine order in a court of law before getting locked up. And they can use law enforcement to help them carry out their forced quarantine or isolation orders, so the knock on your door could very well be the sheriff or police coming to remove you from your home or to “check in” on you to ensure you are locked down in your home, isolated, in accordance with the Health Department’s order against you.
This dystopian horror sounds unbelievable to an American. That the government has the ability to control one’s every move is unnatural to us. Politicians and bureaucrats being able to have unbridled power to tell you where you can and cannot go, what you can and cannot do, and who you can and cannot see is the very antithesis of what our country stands for. It flies in the face of “liberty and justice for all.” After all, we are supposed to be a nation of governance of the people, by the people, and for the people.
And yet, the governor of New York and her Department of Health have promulgated a dystopian regulation that does all of that and more. The regulation is called “Isolation and Quarantine Procedures” and can be found at 10 NYCRR 2.13. It is a clear violation of the Separation of Powers because the governor is not supposed to make law, nor can an agency. Only the legislature can make law and agencies can only issue regulations that the legislature empowers them to issue. Simply put, an agency cannot just make up rules on its own whim. It must have a directive from the legislature to do so.
Remember from grade-school History class: We have three branches of government (Judicial, Executive and Legislative), all are co-equal with one another, and each has its own separate powers and duties. The governor and her agencies are in the Executive Branch of government. The Executive Branch enforces the laws that the Legislative Branch passes.
But in this instance, the Executive Branch has usurped the power of the Legislative Branch by making this regulation, which is actually an impermissible law—despite the State calling it a “regulation.” The important fact is that there is no legislative enabling statute authorizing the Department of Health to make this “regulation”—not to mention the fact that the Executive Branch’s “regulation” violates numerous constitutional rights as well as New York State laws.
So, on behalf of a group of New York State Legislators together with Uniting NYS, a citizens’ group, I am suing the Governor of New York and her Department of Health to stop their “quarantine camp” regulation! The NYS Legislators standing with Uniting NYS in this lawsuit are true leaders: Senator George Borrello, Assemblyman Chris Tague, and Assemblyman Mike Lawler. They’re willing to stand up for We the People, and to help preserve the constitutional rights upon which our founding fathers based our great Nation. Additionally, Assemblyman Andrew Goodell, Assemblyman Joseph Giglio, and Assemblyman William Barclay are also publicly supporting our lawsuit by writing an Amicus Brief supporting our case.
Our lawsuit is the first and only lawsuit of its kind in the country, and its importance cannot be understated. If this “regulation” is allowed to stand, then it will signal to all agencies that they can make regulations that conflict with the Constitution and with state laws.
If that happens, then the Legislative Branch of government will no longer be a co-equal branch. Instead, it will become subservient to the Executive Branch because the agencies in the Executive Branch could simply make a rule that conflicts with our laws (or the Constitution) whenever they wanted. It would render our laws useless. It would lead to tyranny and it is We The People who suffer under a tyrannical regime.
Think about it: if we don’t win this lawsuit and quarantine camps become a new standard of government control over the people in New York, then it will spread like wildfire across America. Other states will see what New York is doing and they will follow suit. The floodgates will open and, once open, those gates may never close. So, we must win this fight, not just for New Yorkers, but for all Americans!
We win!
(Excerpt taken from my article published 7/19/22 in American Thinker).
We have had a tremendous victory here in New York: a Supreme Court Judge has struck down Governor Kathy Hochul’s forced quarantine regulation! On July 8, 2022, Judge Ronald Ploetz ruled that the “Isolation and Quarantine Procedures” regulation is unconstitutional and “violative of New York State law as promulgated and enacted, and therefore null, void and unenforceable as a matter of law.”
Shockingly, New York’s Governor, Kathy Hochul, and Attorney General, Letitia James, plan to appeal the decision. Yes, that’s right…the Governor and AG, both unabashedly support quarantine camps! One would think that this fact, in and of itself, would be disturbing enough but add to it the fact that they’re both running for election this November, and you can see just how unconstitutionally brazen and wholly out-of-touch with New Yorkers each of these “leaders” is.
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Judge Ploetz noted in his decision 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. Involuntary quarantine may have far-reaching consequences such as loss of income (or employment) and isolation from family.”
I fully concur and so, when I first read this regulation last year, I knew I had to strike it down. It was clear to me that this “regulation” violated the separation of powers that is so clearly laid out in our Constitution. It violated existing New York State laws that have been on the books for decades. It violated due process protections.
Late in the day on Monday March 13, 2023, just hours before the deadline, New York Attorney General, Letitia James, filed an appeal to try to overturn our successful lawsuit that struck down Governor Hochul’s unconstitutional “Isolation and Quarantine Procedures” regulation.
The case, Borrello v. Hochul, which we won last July, was brought against the Governor and her Department of Health, on behalf of a group of NYS Legislators, Senator George Borrello, Assemblyman Chris Tague, Assemblyman (now Congressman) Mike Lawler, together with our citizens’ group, Uniting NYS.
The main premise of the case was breach of Separation of Powers – meaning the Governor and her Department of Health did not have the authority to make their dystopian “Isolation and Quarantine Procedures” regulation.
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Press Release:
Here is the statement that was released by plaintiffs Senator Borrello, Assemblyman Tague and Congressman Lawler…
Well, without a doubt, September 13th will live forever in my mind as one of the most memorable days of my life. I doubt I will ever forget it. To me, it symbolized a moment in history when I saw first hand, no, not just saw first hand, but lived, experienced first hand the power of We the People… the citizens of New York, from all corners of the State, from different walks of life, old to young, from various backgrounds and nationalities… come together for a common purpose – to defend our freedom! It was absolutely surreal. And so powerful.
Yes, I was the proverbial warrior, the David going to meet Goliath, as Brownstone Institute (where I am a Fellow) so aptly put it in their wonderful article entitled, David v. Goliath in New York” which was released the day before my court appearance. But warriors do not win battles or wars alone. They have many supporters. And I am so grateful for all of mine.
On September 13th, over 400 of you showed up at the courthouse. Afterwards, I was told by many that they had driven several hours to get there… 5, 6, 7 hours! One woman I met said she had come all the way from Michigan to support me in court! Many people came the night before and stayed in a hotel, while others got up well before dawn so they could arrive at the courthouse first thing in the morning – even before I got there. And that they did…
My case was first up on the 10.00am docket, and I wanted to arrive early, right when the courthouse opened at 9.00am so I could go to the Attorney Lounge and do my last hour of prepping in silence. As I approached the courthouse on foot, my lead plaintiff, Senator George Borrello, who was arriving at the same time, commented on the large crowd that was starting to gather on the courthouse steps. They were holding American flags and some held signs as you’ll see in the photos below.
As we approached the crosswalk at the intersection, I heard someone shout, “There she is!” Suddenly the crowd all turned towards us and erupted into loud cheers and energetic applause, which continued for several minutes as I crossed the street and then climbed the steps. I was so surprised by their amazing greeting, so I smiled and thanked them for coming, walked through the crowd, up the steps and entered the courthouse. There were some familiar faces in the mix, but mostly strangers I’d never met.
Once inside the courthouse, after flashing my attorney ID card in order to circumvent the security line that was forming, I headed up the grand staircase that leads to the courtroom and Attorney Lounge. I could still hear and see through the floor-to-ceiling walls of glass, the crowd cheering outside, and as I started up the staircase, I looked up and saw much to my surprise what appeared to be a few court employees smiling big and clapping for me! One of them even pumped his fist in the air, cheering me as I ascended the stairs. I was completely stunned. I hadn’t said a word yet, and total strangers were applauding me outside and inside the courthouse! How did they even know who I was? Unreal!
I walked down the hallway and entered the Attorney Lounge, and as I had hoped, I was the first one there. I took out my notes and started reviewing for the umpteenth time. Senator Borrello came in to offer me some coffee, and just then the first of the attorneys who had other cases on the docket that day started to arrive in the Lounge. Each one came in with total shock and an edge of excitement after having to navigate the hoards of people streaming in from the outside and going through the security check point.
None of the attorneys failed to ask of the room in general, “What the heck is going on here today? Whose case is this?!?!” They of course didn’t know the name of the case, or its subject matter, but they knew, and verbalized, that they had never seen a crowd like this at court before. Any court! I kept my head down and studied my notes, as Senator Borrello explained the case to them.
After about half an hour more, and then it was show time. I exited the Lounge and headed towards the courtroom. As soon as I turned the corner into the atrium, I saw a crowd of a couple hundred people, most standing, some sitting in chairs that had been set up, theater style, around a large TV screen. The courtroom could only hold about 60-70 people, so the rest would be watching on that screen via closed circuit television.
Though the atrium was packed, it was relatively quiet considering the number of people there. Some were talking, some were praying. They saw me come into the atrium area and they broke out in applause, again! The sea of people parted to make way for Senator Borrello and me to pass through and get over to the courtroom. Along the way, people wished me luck and patted my back as I walked through the crowd, “Go get ‘em Bobbie Anne!” “You’ve got this!” “We are with you!”
I was mentally “in the zone,” so I didn’t say anything to anyone. I just smiled and nodded and kept walking. The courtroom doors were closed. The bailiff saw us coming and opened the doors. Inside, the courtroom was utterly packed! Every single seat filled, all sitting silently, until they saw me enter, when they jumped to their feet and began to applaud as we walked up to the front row. Literally everyone was on their feet smiling and energetically clapping for me. There was only one person I saw, as I approached my seat in the front row, who was not on his feet, was not clapping, and was not smiling. I said to myself, ah, there sits my opposing counsel from the Attorney General’s office. And I was right.
Once the courtroom quieted, the clock tolled 10.00am, the doors behind the bench swung opened, the bailiff shouted, “All rise!” – and we did, as the five New York State Supreme Court Appellate Division justices took the bench. Presiding Judge Smith called the case, “First up, George M. Borrello v. Kathleen Hochul.” The Attorney General’s office went first. I won’t detail his argument, but you can certainly watch it for yourself to hear what he had to say, as well as my rebuttal thereafter.
The entire hearing took less than 30 minutes. I wish I had more time. I had so much more I wanted to explain to the court as to why they should uphold the lower court’s just ruling from last year. But time was limited as their docket was full. The Epoch Times, Children’s Health Defense, and NTD News live-streamed the hearing. This is one of those links if you want to watch the recording of what was said: Oral arguments
After presenting my defense to the Attorney General’s appeal, and answering the questions that a couple of the judges threw at me, I concluded my argument, “If there are no further questions your Honors, then, I rest on my brief.” You could hear a pin drop. I turned from the podium, and within seconds, I heard the rise of thunderous cheering and whooping, coming from the atrium. The couple hundred people outside the courtroom sounded like they were at a sporting event and their team just won the championship game!
I was blown away. I collected my things, and started to walk towards the center aisle to exit the courtroom when the audience there inside the courtroom rose to their feet and began applauding me! Inside the courtroom. That never happens. A standing ovation. In court! I was beyond stunned. I wasn’t sure the judges would be pleased, so I picked up my pace to get out into the atrium as quickly as possible.
As I re-entered the atrium, everyone was on their feet, clapping, shouting words of thanks and of congratulations. I was so relieved it was over. I had been preparing for that hearing for weeks and weeks. It was too important not to. Now it was over, and I could breathe. Cameras or recording devices of any sort are prohibited in courtrooms. But now in the atrium, people had their cell phones out, taking videos, photos, reaching out to shake my hand. As I got to the top of the grand staircase, I saw a man positioned on the steps below. He was snapping photos with his huge, impressive camera. I looked right at him and smiled. He was a stranger to me. But I had noticed him when I first arrived at the courthouse a couple hours earlier. I figured he was with a news organization.
I later found out he wasn’t. He was just a concerned New Yorker, like all the others who came that day, and he wanted to document the event in photos. I am so thankful that he did. Almost all of the photos I have in this article are compliments of Manny Vaucher. I hope you will consider using him for any of your professional photography needs. He is excellent. And so thoughtful. Without my asking, he came to Rochester, took photos all morning, got my assistant’s contact information, and then made a video of his photos, and sent it to me! It’s just a terrific compilation of the event. I hope you will take a few minutes and check it out. He entitled the video, “Thunderstruck – Not All Heroes Wear A Cape.” I borrowed part of his title to entitle this article. His video creation is here: Thunderstruck
To be honest, I don’t know how I did in my arguments. I have no idea if the panel of judges will rule in my favor and uphold the lower court’s decision to strike down Hochul’s illegal quarantine reg. We likely won’t hear for weeks. But, I do know that my reference to entitling this article “Thunderstruck” is not because I think I hit it out of the park, so to speak.
My use of the word “thunderstruck” here is more for the absolutely amazing feeling of unity and support that I felt from the people of New York on September 13th. And even still today, days later, as social media keeps the event happenings alive and circulating, I am still getting so many emails, texts, phone calls, posts, messages, interview requests… it’s totally unbelievable. I said to a friend, this must be what famous people feel like.
After Senator Borrello and I exited the courthouse, we were greeted by a whole other crowd of people who never even got into the building. They were clapping and waving American flags, and coming up to us to shake our hands and thank us for standing up for We the People. There was a speaker and microphone set up, the press was there, and when everyone finished filing out of the court, Senator Borrello and I each spoke, and then we had a press conference with the media. We didn’t all fit on the sidewalk and court steps, and we actually spilled out into the street some. Many cars passed us and honked, not in annoyance, but in support. It was truly unforgettable.
I hope you are sitting down when you read this article.
There is absolutely no way I can possibly sugar coat this, so I’ll just be frank… The NYS Supreme Court Appellate Division’s Fourth Judicial Department has issued their ruling in our quarantine lawsuit against Governor Hochul and her Department of Health, and they have ruled against the will of the people!
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.
Congressman Lawler, Assemblyman Tague, Bobbie Anne Cox, Esq, Senator Borrello
Q&A…
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 reinstated?
Unfortunately, this court has opened the door and paved the way for Hochul and her DOH to reissue 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!
Yes, we are appealing. Help me fight back!
There are many ways you can help…
Donate to the legal fund. First and foremost, I need contributions. I have been handling this case pro bono for the past almost 2 years now. Please consider making a donation. No donation is too small. You can donate here.
For larger donations, there is a non-profit organization that is helping us, and you can get more information by emailing Admin@CoxLawyers.com
Spread the word: Share this article everywhere! Post it all over your social media, email it to your contacts, talk about it over the Thanksgiving table this week, and every day thereafter.
Follow me on Twitter and re-post my posts: @Attorney_Cox
Stay Informed: Sign up for my weekly Substack, and then share it. Consider a paid subscription so you can help support my work.
Attorney Bobbie Anne Flower Cox has been practicing law for 25 years. Formerly an attorney in Manhattan with the international law firm of Nixon Peabody, LLP, Attorney Cox now heads her own office, Cox Lawyers, PLLC, just north of NYC. Attorney Cox has extensive experience in bringing lawsuits against municipalities on behalf of her clients. She has an impressive track record in fighting cities, towns, and villages against unjust and erroneous assessments that the government levies against her clients’ properties. In the new age of COVID restrictions as the “norm”, Attorney Cox represents New York lawmakers and citizens against excessive government overreach, helping to curb the ever expanding arm of the government as it illegally reaches further into all aspects of New Yorkers’ everyday lives.
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