NYS Public Health Legal Manual: A Guide for Judges, Attorneys ...

NEW YORK STATE PUBLIC HEALTH LEGAL MANUAL § 1.46
Commentary
Requests for judicial orders seeking enforcement or review of involuntary
confinement for communicable diseases can come either at
the request of the local health officer—by seeking a court order pursuant
to PHL § 2120 (or, in New York City, pursuant to Health Code
[24 RCNY] § 11.23(f) [medical or other facility], (k) [home or place
of person’s choice]); or at the request of the confined individual—by
seeking a writ of habeas corpus or by bringing an Article 78 proceeding
requesting review of an administrative order of confinement.
Local health officers will seek a court order where they
believe there will not be voluntary compliance with a health order;
in many jurisdictions they will seek a court order as a matter of
course without ever issuing a health order.
The procedure contained in PHL § 2120 (applicable outside New
York City) for obtaining a court order was enacted over a half-century
ago. It requires a complaint by a local health officer to be
brought before a “magistrate,” which by definition could include any
judge in the State of New York, including justices of town and village
courts that otherwise have no jurisdiction to grant such equitable
relief. The only remedy that it provides is the commitment of the
infected person to a “hospital or institution,” which, even if construed
broadly to include a home health agency or local health
department, still might not cover all confinements at home, which is
a more likely result in the face of an epidemic. And it applies only to
the person who is “afflicted with a communicable disease,” and
therefore does not encompass quarantine of persons who are not
infected but who have been exposed to the disease. A literal reading
of section 2120 would impair the ability of local health officers to
obtain court orders in epidemics directed to the broad needs of the
health of the public, and in many cases would leave health officers to
seek only criminal prosecutions under PHL § 12-b for violation of
health orders.
However, PHL § 2120 is not the only authority for obtaining judicial
enforcement of isolation and quarantine. The power to isolate and
quarantine in a health emergency is not ultimately dependent upon
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