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

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§ 1.48 NEW YORK STATE PUBLIC HEALTH LEGAL MANUAL Commentary The constitutionally required standard of “clear and convincing evidence” for judicial review colors the review process where the court obtains jurisdiction over the validity of the confinement through proceedings brought by the confined individual—by Article 78 proceeding or by habeas corpus. Article 78 proceedings typically look to see whether administrative determinations are “arbitrary and capricious,” CPLR 7803(3), with a “rational basis” test being applied to rebut that allegation. See Matter of Pell v. Board of Education, 34 N.Y.2d 222, 230-31 (1974). Or, in the unlikely event that a full evidentiary hearing was held, whether the determination was supported by “substantial evidence.” CPLR 7803(4). Neither would be a constitutionally permissible standard where the Article 78 proceeding challenges a determination by a local health officer for isolation or quarantine. It is not clear whether the oblique language in PHL § 2124 [“Nothing contained in this article shall be construed to prohibit [an institutionalized person] from ‘appealing’ for a ‘review of the evidence on which commitment was made.’”] creates a review process independent of Article 78 review, but if used as such it would require the “clear and convincing evidence” standard as well. Similarly, to the extent that a court examines the legality of confinement under habeas corpus review, the “clear and convincing evidence” standard must apply. [1.48] 3. Right to Counsel PHL § 2120 is silent on the appointment of counsel to represent the confined individual where a judicial order of confinement is sought. The courts have ruled that a right to counsel exists where an individual’s physical liberty is threatened by a state’s action, Project Release v. Prevost, 722 F.2d 960, 976 (2d Cir. 1983), and the State Commissioner of Health has issued guidance to localities that, upon the issuance of a health order, they should advise confined individuals of their right to counsel. • New York City: Health Code [24 RCNY] § 11.23(g)(2)(iii) [notice to confined persons of the Commissioner’s intent to seek a judicial order of confinement must advise the persons of “the right to request that legal counsel be provided, [and] that upon such request counsel shall be provided if and to the extent possible under the circumstances”]. 24
NEW YORK STATE PUBLIC HEALTH LEGAL MANUAL § 1.49 Commentary A right to counsel implies that counsel must be provided if the person cannot afford counsel. However, as the City Health Code recognizes, the timing and mechanics of the providing of such counsel may be dependent on the circumstances of the health crisis. See Health Code [24 RCNY] § 11.23(g)(1)(v) and (2)(iii). The responsibility of a public entity to pay for assigned counsel for indigents is governed by statute. See County Law, Article 18-B [county to pay in criminal cases]; Judiciary Law § 35 [state to pay in enumerated civil cases]. Neither Article 18-B nor section 35 applies here. In the absence of a statute setting forth which entity should pay for counsel provided to isolated or quarantined persons who are indigent, the locality would have to work out an arrangement with counsel. [1.49] 4. Subsequent Judicial Retention Orders There are no provisions in the PHL that require subsequent judicial review of the need for confinement. Nevertheless, some local plans provide for the local health officer to periodically seek judicial review of the initial PHL § 2120 judicial order, to ensure that there still is a justifiable basis for continued confinement. • New York City: Health Code [24 RCNY] § 11.23(f) [The Commissioner of Health must seek further court review of the confinement every 90 days]. Commentary The same procedural due process requirements that apply to the deprivation of liberty caused by initial confinement of an infected person would apply to the continued confinement of that person. At some point, the confined individual would have a constitutional right to a hearing on the necessity for the continuation of the confinement. See Project Release v. Prevost, supra, 722 F.2d at 965 [upholding civil commitment statute that provided, inter alia, for judicial review every 60 days]. As with all procedural due process evaluations, the actual time limit for subsequent re-examination of the need for confinement would depend on the factual basis for the confinement and the balance between the individual and governmental interests at stake. 25
Page 1 and 2: N E W Y O R K S T A T E PUBLIC HEAL
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Page 5: EDITORIAL BOARD ROBERT ABRAMS, ESQ.
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TABLE OF AUTHORITIES Parratt v. Tay
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TABLE OF AUTHORITIES Civil Practice
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