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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The Department of Health has the power and duty to “establish, maintain, and enforce rules authorized under state law or required by federal law to promote and protect the public health or to prevent disease and illness.” Utah Code Ann. § 26B-1-202(26); see also, Utah Code Ann. § 26A-1-114(1)(b) (local health department authority to quarantine and isolate). The department may issue an order of restriction requiring examination, treatment, quarantine, or isolation of an individual or a group of individuals.  Utah Code Ann. § 26B-7-204. The types of individuals or group of individuals subject to an order of restriction are outlined in Utah Code Ann. § 26B-7-204.  The Department will issue a written order of restriction.  Utah Code Ann. § 26B-7-304(1)(a).  A verbal order is permitted but valid only for 24 hours.  Utah Code Ann. § 26B-7-304(1)(b); § 26B-7-304(2)(c)(ii)(A).  The written order of restriction must include a statement of individual rights, which includes “the right to be represented by legal counsel in any judicial review of the order of restriction in accordance with Subsection 26B-7-309(3).”  Utah Code Ann. § 26B-7-307(2)(a). A person can consent to the order of restriction.  Utah Code Ann. § 26B-7-305.  If a person refuses to consent, withdraws consent, or the department does not seek consent, the department must file a petition for judicial review of the order of restriction.  Utah Code Ann. § 26B-7-309(1).  The petition may apply to a group of individuals.  Utah Code Ann. §§ 26B-7-309(2)(d), 26B-7-310(1)(a). 

The statute sets apart individuals and groups who are subject to an order of restriction and are in custody from those who are not in custody. “Custody” is not defined in the statute.  For those not in custody, the court can hold an ex parte hearing.  Utah Code Ann. § 26B-7-310(4).  For individuals in custody, hearings will be held in accordance with Utah Code Ann. § 26B-7-310 through § 26B-7-312.  Any person subject to an order of restriction has the right to be represented by counsel.  Utah Code Ann. § 26B-7-307(2)(a).  The appointment of counsel appears to apply only to those who are “in custody[.]” Utah Code Ann. § 26B-7-309(3)(a) [“If the individual who is subject to an order of restriction is in custody, he shall be afforded an opportunity to be represented by counsel. If neither the individual nor others provide for counsel, the district court shall appoint counsel and allow counsel sufficient time to consult with the individual prior to the hearing. If the individual is indigent, the payment of reasonable attorney fees for counsel, as determined by the district court, shall be made by the county in which the individual resides or was found.”].