Monday, April 8, 2019

State Court strikes down emergency measles declaration

A State Supreme Court Justice has preliminary enjoined the County of Rockland from imposing an "Emergency Declaration" preventing any unvaccinated children under the age of 18 from entering any "place of public assembly," defined as any place where 10 or more people congregate, including schools.

The case is W.D. v. County of Rockland, issued on April 5. You've probably heard about the measles outbreak in Rockland County, where parents are not vaccinating their children for religious reasons. In late March 2019, the County Executive issued the ban pursuant to Executive Law section 24, which says the County Executive can issue a local state of emergency in the event of a "disaster," defined to include an epidemic. According to the court ruling, Rockland County has roughly 330,000 people. A total of 166 people in Rockland have the measles, or .05% of the population. Is this an epidemic under the law? Acting Supreme Court Justice Rolf M. Thorsen says it is not.

The Court notes that "an 'epidemic' is not defined within Executive Law section 24." So the Court looks to the "ordinary meaning" of the word. Under the dictionary definition, "an 'epidemic' is defined as an 'outbreak of disease that spreads quickly and affects many individuals at the same time." There is no "epidemic" in Rockland, the Court holds, because the .05% infection rate does not "rise to the level of an 'epidemic' as included in the definition of 'disaster' under Executive Law section 24." The proclamation is also enjoined because the County Executive imposed it for 30 days, and the law only allows him to do this for 5 days.

Under the rules governing Article 78 proceedings, the Executive's declaration is therefore "arbitrary and capricious" and struck down as a matter of law. This case is fascinating because few local judges will second-guess elected officials on emergency-related declarations. To give you a sense of how this case is being litigated, I give you the introduction to the County's memorandum of law in opposition to the injunction:

From October 2018 to date, Rockland County has seen 166 cases of measles during an outbreak, the magnitude of which has not been seen for decades. The County, and the United States in general are protected by what is known as ‘herd immunity’ as the result of the generally high rate of vaccinations for measles in the population. Essentially there are so few susceptible persons, that the disease is ‘starved’ of hosts and cannot spread. However, in Rockland County there are geographic areas where the vaccination rates are low, resulting in a lack of herd immunity, providing a rich ground for the disease to spread. The Plaintiffs’ schools are located in that geographic area.

As a result, upon the detection of the outbreak, the County Commissioner of Health, in consultation with the New York State Department of Health, determined to protect the public health by taking steps to prevent the spread of the measles. That course of action included, among other things, issuing an order excluding unvaccinated children from attending schools, where collections of unvaccinated children would provide a breeding ground for rapid spread of the disease.

This has been a stepped process. Initially, the order was applied only to schools where there were known exposures to the measles and vaccination rates were below 70% of the student body. Schools are the primary target of the restrictions because, in Rockland it is demonstrated that young people are the primary victims of the measles.

However, as cases continued to increase and the initial restriction was deemed to be
insufficient to stem the spread of the measles, it was observed that all of the cases were occurring in a limited geographical area within the County, which included the location
occupied by the Plaintiffs’ schools.
At that time, the order was extended to all schools in the geographic area, public and private, and presently affects approximately 60 schools. Due to the failure of less restrictive means to hold back further infections and spread of the measles, the Commissioners have become more restrictive. Presently, all schools in the subject
geographic area, with less than 95% vaccination rates are required to exclude all unvaccinated children until 21 days after the last known case. That time may be increased to 42 days based upon advice of the Center for Disease Control, but that ruling
by the Commissioner has not been made.

Following the Commissioner’s efforts, the number of cases in the County continued to increase. On February 22, 2019, the State declared the County to have an imminent threat to health. Through the middle of March 2019, the infections continued to increase.

On March 26, 2019, the County Executive determined to make further efforts to stem the tide if exposures to the disease and resulting infections. On that date, he declared the County to be in a State of Emergency, pursuant to his powers under Executive Law § 24. As a part of the declaration, he gave a directive that, generally speaking, required parents and guardians to keep all children and infants, unvaccinated for any but a medically determined reason, away from places of public assembly, including schools, houses of worship, shops, restaurants, etc. The Declaration will expire on April 25, 2019.

Now for the Plaintiffs' arguments, in part:

The irreparable harm. being caused by the orders and declaration challenged herein are incalculable. Hundreds of children are being excluded from school and public places. Their school districts are not providing tutoring. Children from Green Meadow and Peace though Play have missed nearly four months of schooling as a consequence of an exclusion order which exceeded the authority of the respondent county. Now, children from other schools and parts of the county, uncovered previously. are being caught in the same net. The annexed Affidavits provided by Green Meadow parents speak to the tremendous harn their-children have experienced and continue to experience.

Nearly six months after the first seven cases of measles were reported in his county and despite the fact that his Com.missioner of Health has failed to quarantine those infected at any time during this period, the County Executive seeks to bully the parents of unvaccinated children and to grandstand against religious exemptions. But, he cannot point to a single case of measles which was contracted by contact with any of these unvaccinated children. Nor have any of these unvaccinated children contracted the disease or have it. Instead, those suffering from measles resides in self-segregated communities and the disease has been so isolated.
The equities here strongly favor striking the respondent's illegal and unprecedented local emergency order. That order punishes unvaccinated children and their families because of an entirely legal status, one recognized by our state. Rather than timely quarantining those who had or have measles, the county has allowed them full mobility. It now seeks to pressure families who have religious exemptions to choose between isolating their healthy children or breaking their religious beliefs. The County Executive has scared the public by claiming that there are 157 cases of measles without advising the public that there are at most four active cases and these are, as prior cases have been, isolated to the religious community. The unprecedented local emergency order violates Executive Law 24 on its face, purporting to extend for a thirty day period which the law itself limits such orders to five days. Moreover, the respondent has misused this law intended for other purposes while not using the authority provided through the state's public health laws to meet the public need.

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