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 California State Department of Public Health (renamed from the Department of Health Services, pursuant to § 131052) has authority to “…quarantine, isolate, inspect, and disinfect persons, animals, houses, rooms, other property, places, cities, or localities, whenever in its judgement the action is necessary to protect or preserve the public health.”  Cal. Health & Saf. Code § 120145; see also, §§ 120130 (c)&(d), 120205, and 120210.  These sections are found in the Communicable Disease and Prevention Division of the Health and Safety Code.  There is no procedure specified for challenging an order issued pursuant to this authority.  However, a writ of habeas corpus to contest an order of quarantine may be available.  See In re Martin, 83 Cal. App. 2d 164, 188 P.2d 287 (1948). Though a right to counsel is available in some habeas corpus proceedings, it was not specifically identified in this context.  Further, if the order can be challenged administratively via formal hearing, the notice of the hearing states “You have the right to be represented by an attorney at your own expense. You are not entitled to the appointment of an attorney to represent you at public expense. You are entitled to represent yourself without legal counsel.”  Cal. Gov. Code. § 11509.

For tuberculosis control, a local health authority can issue orders for the protection of public health when it is determined that “…the public health in general or the health of a particular person is endangered by exposure to a person who is known to have active tuberculosis disease, or to a person for whom there are reasonable grounds to believe has active tuberculosis disease.”  Cal. Health & Saf. Code § 121365.  The health authority can order a person’s “…removal to, detention in, or admission into, a health facility or other treatment facility.”  Cal. Health & Saf. Code § 121365(a), (d), (e).  In this context, “any person who is subject to a detention order shall have the right to be represented by counsel and upon the request of the person, counsel shall be provided.”  Cal. Health & Saf. Code § 121366.  An order of detention issued by a local health officer is to be accompanied by a separate notice that advises the person of their “…right to arrange to be advised and represented by counsel or to have counsel provided, and that if he or she chooses to have counsel provided, the counsel will be notified that the person has requested legal representation.”  Cal. Health & Saf. Code § 121367(b)(4), & (b)(5)(B).