Right to counsel

NOTE: this is a very complex area of law, especially as it relates to stay-at-home orders issued by the states.  Please read our primer on quarantine/isolation law before reading this specific state law.

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If a public health emergency has been declared, the State Commissioner of Public Health can issue an order to isolate or quarantine any person.  N.J. Stat. Ann. § 26:13-15(a).  "Isolation" is defined as “…the physical separation and confinement of an individual or groups of individuals who are infected or reasonably believed to be infected, on the basis of signs, symptoms or laboratory analysis, with a contagious or possibly contagious disease from non-isolated individuals, to prevent or limit the transmission of the disease to non-isolated individuals.”  N.J. Stat. Ann. § 26:13-2.  "Quarantine" means “…the physical separation and confinement of an individual or groups of individuals, who are or may have been exposed to a contagious or possibly contagious disease and who do not show signs or symptoms of a contagious disease, from non-quarantined individuals, to prevent or limit the transmission of the disease to non-quarantined individuals.”  N.J. Stat. Ann. § 26:13-2. 

N.J. Stat. Ann. § 26:13-15 sets out the procedures for isolation and quarantine in a public health emergency.  The Commissioner must petition the Superior Court for an order authorizing the isolation or quarantine of an individual or group of people. N.J. Stat. Ann. § 26:13-15(e)(1).  There is no mention of a right to counsel, or a right to be represented by counsel, at this initial petition stage.  However, after the initial court order is issued, a person can request a hearing to contest continued isolation or quarantine and “the petitioner shall have the right to be represented by counsel.”  N.J. Stat. Ann. § § 26:13-15(f)(1), and (g)(1); see also N.J. Admin. Code 8:57-1, Appx. B (1.8)(a)(1).  There is no mention of the appointment of counsel for indigent petitioners.

If there is no public health emergency, the Department of Health is empowered to "maintain and enforce proper and sufficient quarantine, wherever deemed necessary," and to remove any person with a communicable disease to a suitable place.  N.J. Stat. Ann. § 26:4-2(d), and (e).  The process to challenge an order of quarantine in this context is not described in the statute.  

A person may be quarantined for venereal disease, but there is no right to counsel articulated.  N.J. Stat. Ann. § 26:4-37. 

For tuberculosis specifically, the commitment and isolation of persons is governed by Title 30 (titled "Institutions and Agencies").  N.J. Stat. § 30:4-24.  A person who is the subject of a court hearing for involuntary commitment to treatment, has "...the right to be represented by counsel, or, if indigent by appointed counsel."  N.J. Stat. Ann. § 30:4-27.14(a).  At a hearing for involuntary commitment, the patient "...shall have counsel present at the hearing and shall not be permitted to appear at the hearing without counsel."  N.J. Stat. Ann. § 30:4-27.12(d).  The right to counsel extends to a conversion from involuntary to voluntary status (N.J. Court Rules, R. 4:74-7(g)(1)&(2)), and to all placement review proceedings (N.J. Court Rules, R. 4:74-7(h)(2).  The New Jersey Court Rules specify that a court order for temporary commitment pursuant to Title 30 shall include the "assignment of counsel to represent an unrepresented patient, whose fees shall be fixed by the court after hearing and paid pursuant to paragraph (i) of this rule."  N.J. Court Rules, R. 4:74-7(c)(3).