Justice and Due Process

HB 3009: Restricting Local Governments in Issuing Shutdown Orders


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:

  1. 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.
  2. Justice courts and city/county administrators should suspend the collection of fees or fines for the duration of the emergency order.
  3. 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. 
  4. 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.

  • forgotusername?

    Good analysis as usual.

  • Spyglass

    Does this law have an option for criminal penalties if a person violates an order? The only penalty I saw was the civil penalty. Can you please clarify this point?

    • No new criminal penalties, but the existing law imposes a class B misdemeanor on those who violate these orders, so that’s why limitations on the orders are so important.

  • The very wording of line 107 of HB 3009 ‘exercises physical control over property and over individuals’, although already currently part of the Health Department’s code, is a direct violation of the 4th amendment of The Constitution. This bill therefore, although a transfer of power from health department to local elected officials, still fails miserably.

    • This is merely a description of a type of order they are seeking to limit — it is not a new grant of authority, at all, to exercise physical control over property.

      Further, it’s not necessarily a violation of the 4th amendment because an order can simply require a person to remain in their home without the government needing to search the home.

  • And the $1,000 “civil penalty” imposed by health officials for disobeying the Executive order? The Health Department issuing orders?? I don’t care what you say about that—that’s power that can be easily abused. I wouldn’t put it above government to set someone up. Honestly.

    • It’s not merely for disobeying an order. It only pertains to a person who has tested positive for a pandemic-level disease who, knowing they are contagious, and under an explicit (not general) order by the health department, endangers others by breaking quarantine.

      It could be narrowed further, but it’s not an egregious expansion of power that applies to everyone.

      • Tracy Moore Hunter

        So with that logic, refuse testing and come and go about your business with no demands on your person to quarantine, because we don’t know we are infected?

      • Not egregious but an expansion, nonetheless.

        Appreciate the clarification.

  • Kevin Paulson

    No government official has the authority to confine someone for simply having a virus unless it can be proven that this person is intentionally spreading this disease to others in order to inflict harm. This bill isn’t even about quarantine, it’s about granting dictatorial police powers to government officials during an “Emergency”. According to this bill, a government official could rape someone and be justified under the statute as long as he declares it an emergency. The acronyms Nazi and SS should come to mind.

    Connor – you should be advocating that this bill immediately ban all “emergency powers” declarations because ALL such decrees short circuit the constitutional constraints on government which are exponentially more important in emergencies. Because All governmental power comes from the people, if I can’t declare an emergency and confine you in your room for any reason I wish, then government cannot either, never, ever!!!!!!

    • The existing law is very, very troubling. This bill narrows government power which is a good thing. I agree that we can and should go further, but as noted, there are political realities that prevent that for now. So, a few baby steps is better than nothing…

      • Kevin Paulson

        Did Jefferson and Washington droop their shoulders and say “political realities…”? I dare say no. This is the time to man up – to walk like a man instead of crawling on our knees like babies. Men wear boots. Put your boots on the neck of government where they belong. Has Libertas lost its namesake?

  • Kirk

    Connor, maybe you can help clarify something for me. The text of the bill lists many Utah Codes that it is “enacting”. What does that mean? I thought that if this bill was simply changing a few terms or definitions, it would be listed an an amendment, not an enactment. Also, since the bill in its entirety is written in underline, I thought it was new legislation. Normally, plain text is existing law, new additions are underlined and removals are strikeout.

    • The reason for this is that the code database hasn’t yet been updated from the session that just ended, so they can’t intertwined with existing law because of programming issues. So they’re doing this as a standalone bill that supersedes any conflicting language, rather than simply amending existing law. A bit awkward, but it accomplishes the purpose.

  • Bruce Ahlstrom

    Line 107, Government “exercising physical control over property and over individuals” is the definition of tyranny.

    • You apparently didn’t read the article. This is just a definition of existing orders that are authorized under Utah law; it’s not a new creation of power or control at all.

      • Bruce Ahlstrom

        So tyranny is already codified in Utah law. Let’s get rid of that law.

  • Bruce Ahlstrom

    Government “exercising physical control over property and over individuals” is the very definition of tyranny.

  • Please!

    Thank you, Connor! Very helpful

  • Mike

    Connor,

    Thank you for this post. I have reviewed the arguments for HB3009 I understand that there are current provisions which allow for the health department to overreach in their approach to how they handle an Emergency State. My position is that neither the health department nor local government should be empowered to violate constitutional rights (First Amendment) during a state of emergency. There should be guidance issued for best practices however no criminal prosecution for people who choose to exercise their first amendment rights! If the current law (26A-1-S114) is unconstitutional we should amend it to remove those provisions (b) instead it appears we are simply granting those provisions to local government.

  • Aaron Sellers

    I’d like to know what your thoughts are on the opposition to this bill by Defending Utah which includes many people I respect such Morgan Philpot and Lowel Nelson and Joel Skousen. The statements from Morgan in this article are very troubling:

    https://www.defendingutah.org/post/2020/04/16/HB3009-Giving-Tyrannical-Powers-To-Your-Mayor

    • Lea Ann

      I read the article in the link you shared, and I would have to agree with Defending Utah. Whereas the legislators are trying to pass this as a stand alone bill, instead of amending what is currently written in Utah Code, they are sneakily able to exercise control over people and property with no regard to Article 1 in Utah Constitution. I like what Skousen said:
      “He (Utah legislator) claims the goal is not to give more authority or take away rights, but to reign in authority in state health code.
      But if it doesn’t define the core issue, that there can be NO valid “wide authority” ill defined in the state code, that allows the violation of Article 1 rights to assembly, religion and freedom of movement, how is it reigning in authority at all? In order to reign in those “wide powers” the bill must specifically prohibit any dictate by authorities that violates the specific rights enshrined in Article 1. I’d like to see my representatives propose that kind of amendment to this bill, and then it would be a good bill.”
      So if they specifically said that House Bill 3009 couldn’t violate our rights as stated in Article 1, then it would be a good bill.

  • bbarendt

    We already have laws and rights that restrict what officials can do – yet they have nonetheless overstepped, circumvented and outright abused those laws and our rights in the name of “protecting the public”. We don’t need MORE laws and statutes, especially ones that are clearly “open” for interpretation, what we need are government officials who respect the confines of their role and responsibility to the public.

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