The Utah Legislature is convening a special session that is unique in two ways: 1) it is the first time, under new powers, that the Legislature has called itself into a session (historically/typically it is the Governor that issues the call and has that power); and 2) it is the first time, under new process, that the Legislature is convening entirely online, remotely, using video chat technology.
Several bills are being considered, and one of them has already received some scrutiny online, much of it inaccurate. Representative Tim Hawkes and Senator Jake Anderegg are sponsoring House Bill 3009, which aims to restrict under what circumstances local officials can issue shutdown/quarantine orders.
Some have claimed that this bill creates new powers for local officials to issue these orders and restrict assembly, free movement, and property rights. But keep in mind the following, which are existing law:
- 53-2a-206 allows the governor to declare an emergency. 53-2a-208 allows the chief executive officer of a city or county to do so.
- 53-2a-209 allows the governor or CEO of a city/county to issue orders, rules, or regulations during an emergency that then have “the full force and effect of law during the state of emergency.”
- 26A-1-114 allows a local health department, on its own, to establish and enforce quarantines, exercise physical control over property and individuals, at its own discretion. They are also empowered to close schools and other public places. Further, they have “incidental authority as necessary” to carry out their broad powers.
- 26A-1-123 makes it a class B misdemeanor to violate any order issued by a health department, and treats “each day of violation of this section [as] a separate violation.”
HB 3009 then aims to add new constraints on how these broad powers can be exercised. Among other things, the bill:
- defines a local order of constraint (shut down order, quarantine, etc.) which merely references in new language what already exists in legal authority for the governor and city/county chief executive officers;
- supersedes any other law and prohibits the Governor from suspending the provisions of the bill (since he has the power to suspend laws during a declared emergency);
- requires an order to expire within 14 days (if it doesn’t expire earlier as ordered by the executive, or if vetoed by the governor);
- allows the legislative body (the legislature or the city/county council) to reauthorized and extend the order;
- prohibits a local government from re-issuing or extending an order that has been vetoed by the governor;
- requires the chief executive to consult with the health department in issuing an order;
- prohibits the health department from issuing their own orders unilaterally any more, and requires them to work with and advise the chief executive and legislative body;
- forces all existing orders in Utah to expire on May 1 (for those that don’t expire earlier) unless extended by their respective legislative bodies;
- allows the governor to override, for consistency, any local order that conflicts; and
- allows a civil penalty of $1,000 to be imposed upon a person who has tested positive for a pandemic disease, has been explicitly and directly ordered by the health department to stay at home for quarantine purposes, and who violates that order (thus endangering others).
Part of the misunderstanding many people have had is regarding the definition of a “local order of constraint,” which includes an order that “establishes, maintains, or enforces isolation or quarantine” or stay-at-home order, or “exercises physical control over property and over individuals.” Some people seem to be reading into this that these are new grants of authority to issue such orders, but that is incorrect. This is merely a definition that describes these types of orders, so that they can then be restricted by the provisions of the bill.
Current law gives wide latitude to local officials and this power has been abused. HB 3009 is designed to add constraints and oversight. The bill can be improved with the following changes:
- Require any order issued during an emergency to first be reviewed by the city/county attorney to ensure that the proposed order:
- does not violate any constitutional protections;
- is narrowly tailored to restrict only specific activities that have a reasonable likelihood of spreading disease; and
- applies criminal consequences only to behaviors that reasonably cause serious bodily injury or death.
- Justice courts and city/county administrators should suspend the collection of fees or fines for the duration of the emergency order.
- If the chief executive does not intend to criminally enforce violation of an order, then they shall be required to disclose this information in any and all communications regarding the order.
- If an order is reauthorized for longer than 14 days, then an economic analysis shall be performed and published to reasonably determine, and publicly disclose, the anticipated impact of continuing the order.
It is important to protect public health, but not at the expense of individual liberties and due process. Many of the constraints in HB 3009 are prudent and important, and local officials should have increased scrutiny when they impose broad orders that infringe on a person’s rights.
While more could be done to constrain these powers further, there are also political realities in play. The bill only takes effect immediately (thus impacting the current shutdown orders) if the bill passes by 2/3 in both the House and the Senate, which thus requires pursuing changes that are broadly supported, which the above-listed ones are and should be.