About the right to counsel in quarantine/isolation cases
04/20/2020, Legislation, Quarantine/Isolation
The NCCRC's status map (on the "Right to Counsel Status" view) now has an option to see the right to counsel status in all 50 states for "quarantine" and "isolation" due to communicable disease. Because this is a very complex area of law, especially as it relates to stay-at-home orders issued by the states, we are providing the background below so that the state laws can be correctly understood, with some key qualifications in bold.
The state authority specifically for quarantine and isolation due to communicable disease generally appears in the public health or disease control and prevention statutes. State and local health officials are typically granted the authority to quarantine and isolate individuals, groups, and, at times, whole areas, for the prevention and control of the spread of communicable, notifiable, or reportable diseases. Generally, a statute will include procedures that health officials must follow for the identification and treatment of people with such diseases. The health authority will generally have a range of control or public health measures to use, of which isolation and quarantine are the most restrictive. “Isolation” and “quarantine” are not always the specific terms used; other terms such as commitment, custody, detention or treatment may encompass or substitute for them, and in some instances, the state may be empowered to commit an individual or individuals to state custody. It is also important to note that the terms “quarantine” and “isolation” are sometimes specifically defined, where the former often refers to individuals believed to been exposed to someone who is infected and the latter to people who are believed to be infected themselves.
The procedure begins, in most states, with an order by the health authority that the person or group of persons can consent to or “voluntarily” comply with. Because isolation and quarantine are severely restrictive, court proceedings authorizing such acts are often the next mandatory step, whether there is consent or not. However, many statutes will allow the health authority to file a petition only when the person is non-compliant with the initial agency order and deemed a public threat. While hearings are required in some states, other states only require a hearing if requested by the person. The right to counsel for these proceedings varies from state to state. The right may be available for an individual or group of individuals named in a petition, but may be limited to a specific type of order, a specific step in the process, or a specific disease (for instance, tuberculosis-related quarantines are often specifically addressed and provide a right to counsel that is not present for other types of quarantine). On rare occasions, the right to counsel is available for persons subject to a general area quarantine. A right to counsel in this context, if available, will often attach at the stage when the health authority, or the person challenging the order, has petitioned the court.
Besides the specific quarantine statutes, states typically have the power to quarantine or isolate people and areas through general police powers or through emergency powers (which come into effect during a declared public health or state emergency) to control areas and the movement of people, and this may be referred to as the power to control the egress and ingress of individuals into a specific area, detention, control over persons and property, etc., rather than as “quarantine” or “isolation”. Often the statement of authority is broad, but also time-limited unless renewed. Notably, when states issue a “stay at home” or “shelter in place” order, it often is issued pursuant to this police/emergency power and not the specific quarantine laws (not even if the state has an “area quarantine” procedure). Where the general police or emergency power is used, the quarantine-specific procedures set out (including the right to counsel) are unlikely to apply.
The general and emergency police powers outlined above often fail to set forth or reference a specific process by which an affected person can challenge such an order. Some states provide a process and will require an authorizing court order prior to, or immediately after, the issuance of any order of quarantine or isolation. If no process is set out to challenge a proposed quarantine order, a person detained via quarantine will likely be able to seek release from detention through a writ of habeas corpus, but our research does not address the right to counsel for such habeas proceedings. In addition, if the order is issued by a state health department or agency, there may be an opportunity to challenge the order administratively. Administrative procedure acts often set out a right to be represented by counsel, without mention of appointment for indigent people. In most states, a violation of an order of quarantine or isolation is a criminal act (typically a misdemeanor).