Judge Pauses Rockland's Measles Emergency Order

Apr 8, 2019

A judge has halted the Rockland County executive’s emergency declaration aimed at curbing a measles outbreak. Friday’s decision put an immediate pause on the county’s 30-day emergency order that began at the end of March.

The preliminary injunction from an acting state Supreme Court justice comes in response to a lawsuit filed April 3 by a number of parents of unvaccinated children. Michael Sussman is their attorney.

“Well the declaration’s life by its terms went to April 25,” Sussman says. “We’re back in court on April 19, so I would say it’s pretty much a strike-down.”

Republican Rockland County Executive Ed Day declared a state of emergency, effective March 27, that barred those under 18 years of age who are unvaccinated against measles from public places like malls, schools and houses of worship.

“The judge has basically indicated that Executive Law 24 is no vehicle for this, that what’s contemplated by that is a response to a disaster, rioting, a catastrophe, and that this is not that, which was our fundamental argument,” Sussman says. “The judge indicated we have a substantial probability of success on that argument as well as having shown irreparable harm and a balance of equities, that means the public interest in our favor, given the intrusion of this overbroad executive order.”

The judge’s decision says the number of Rockland measles cases does not fit the definition of a disaster, including an epidemic. In a statement Monday, Day says he vehemently disagrees with the judge’s order that the county’s measles crisis does not rise to the level of an emergency. In addition, the county attorney sent a letter Monday to the judge and Sussman saying that the judge’s restraining order did not involve the health commissioner’s December order that continues to bar unvaccinated students from schools that have less than a 95 percent vaccination rate. Day says the judge’s order has been interpreted by some to mean that these students may return to school. On Friday, Sussman indicated that the children of the parents who filed the April 3 suit would return to school Monday.

The lawsuit that resulted in the preliminary injunction is separate from one filed in March, in which nearly two dozen Rockland County parents challenged the breadth of that December exclusion order barring their unvaccinated children from attending a private school in a zip code the county deemed a measles hotspot. Attorney Sussman represents the parents for this suit as well.

Rockland now has 168 confirmed measles cases. The Centers for Disease Control and Prevention report that from January 1 to April 4 this year, 465 cases of measles have been confirmed in 19 states. Day says the state of emergency was working in that there was an uptick in the number of residents seeking MMR vaccinations. MMR is the vaccine against measles, mumps and rubella. Day’s order drew international attention. Republican state Assemblyman Colin Schmitt’s 99th District includes the town of Stony Point in Rockland County. He weighs in on the judge’s decision to temporarily halt the ban.

“Anytime that action is taken that could be detrimental to the public health is disappointing,” Schmitt says.

A number of Democratic state lawmakers who represent Rockland supported Day’s emergency declaration. Schmitt’s district covers part of Orange County, where just last week the number of confirmed measles cases rose from 12 to 15.

“I applaud Ed Day for the steps that he’s taking to try to stem this outbreak in Rockland County,” says Schmitt. “I know a lot of people are nervous; a lot of people are concerned about the health of their community, of their children, of their families.”

Schmitt says he will be reviewing proposed legislation concerning vaccinations this week. One such bill would repeal exemptions from vaccination requirements for children due to religious beliefs.