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THE PETITIONERS (THREE NYS LEGISLATORS AND AN ADVOCACY GROUP) DID NOT HAVE STANDING TO CHALLENGE THE DEPARTMENT OF HEALTH REGULATIONS ALLOWING ISOLATION AND QUARANTINE DURING THE COVID-19 PANDEMIC (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the three New York State legislators (the legislator petitioners) and the advocacy group (the organizational petitioner) challenging the Department of Health regulations allowing isolation and quarantine during the COVID pandemic did not have standing to bring the petition. Legislators have standing where there has been a usurpation of power by the challenged regulations, not the case here. Advocacy groups have standing if any of its members suffered an injury not suffered by the public at large, not the case here:

… “[C]ases considering legislator standing generally fall into one of three categories: lost political battles, nullification of votes and usurpation of power” … . … “in limited circumstances, legislators do have . . . standing to sue when conduct unlawfully interferes with or usurps their duties as legislators” … . Nonetheless, to confer legislator standing, the alleged action must have caused “a direct and personal injury [that] is . . . within a legislator’s zone of interest and . . . represents a concrete and particularized harm” … .  * * *

… [T]he organization petitioner failed to “articulate any direct injury to its [members], other than the injury every citizen allegedly suffers by reason of the challenged [action] of the . . . executive branch[ ]” … . … [W]e conclude … that the organization petitioner lacks standing to bring the challenge in its own name inasmuch as it “has failed to allege a personally concrete and demonstrable injury distinct from that suffered by the public at large” … . Matter of Borrello v Hochul, 2023 NY Slip Op 05834, Fourth Dept 11-17-23

Practice Point: Essentially, to have standing to challenge a regulation, a legislator and/or an advocacy group must be able to point to a harm separate and apart from harm suffered by other legislators (re: the legislator petitioners) or the public at large (re: the organizational petitioner). Here the legislators and the advocacy group challenging the COVID isolation and quarantine regulations were unable to demonstrate any unique harm.

 

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