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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Virginia provides separate procedures for the isolation of persons with a communicable disease of public significance, and for the isolation or quarantine of those with communicable diseases of public health threat. 

A communicable disease of public health significance is “…as determined by the State Health Commissioner, caused by a specific or suspected infectious agent that may be transmitted directly or indirectly from one individual to another.”  Va. Code Ann. § 32.1-48.01.  For communicable diseases of public significance, the State Health Commissioner may petition the court for an order authorizing isolation or issue an emergency administrative order of custody for up to 48 hours and then petition the court.  Va. Code Ann. §§ 32.1-48.02, and 32.1-48.03.  In this context, a court order of isolation can be issued directing the person to remain “in the person’s home or another’s residence or an institution or other place.”  Va. Code Ann. § 32.1-48.04(B).  “Any person ordered to appear before the court pursuant to this section shall be informed of his right to be represented by counsel.  The court shall provide the person with reasonable opportunity to employ counsel at his own expense, if so requested.  If the person is not represented by counsel, the court shall appoint an attorney-at-law to represent him.”  Va. Code Ann. § 32.1-48.03(C).  The person has the right to appeal the isolation order, and if at appeal “…the person under an isolation order is not represented by counsel, the judge shall appoint an attorney-at-law to represent him.”  Va. Code Ann. § 32.1-48.04(D). 

A communicable disease of public health threat is “an illness of public health significance…caused by a specific or suspected infectious agent that may be reasonably expected or is known to be readily transmitted directly or indirectly from one individual to another and has been found to create a risk of death or significant injury or impairment; this definition shall not, however, be construed to include human immunodeficiency viruses or tuberculosis, unless used as a bioterrorism weapon.”  Va. Code Ann. § 32.1-48.06.  The State Health Commissioner can invoke isolation and quarantine provisions for communicable diseases of public threat only when they have determined that

exceptional circumstances exist relating to one or more persons in the Commonwealth who are known to have been exposed to or infected with or reasonably suspected to have been exposed to or infected with a communicable disease of public health threat and that such exceptional circumstances render the procedures of Article 3.01 (§ 32.1-48.01 et seq.) of this chapter to be insufficient control measures or that the individuals have failed or refused to comply voluntarily with the control measures directed by the State Health Commissioner in response to a communicable disease of public health threat…

Va. Code Ann. § 32.1-48.05.

For communicable diseases of public health threat, the commissioner may issue an order of isolation or quarantine.  Va. Code Ann. § 32.1-48.07.  “Quarantine” in this context means “…the physical separation, including confinement or restriction of movement, of an individual or individuals who are present within an affected area, as defined herein, or who are known to have been exposed or may reasonably be suspected to have been exposed to a communicable disease of public health threat and who do not yet show signs or symptoms of infection with the communicable disease of public health threat in order to prevent or limit the transmission of the communicable disease of public health threat to other unexposed and uninfected individuals.” Va. Code Ann. § 32.1-48.06.  A quarantine order can be issued as against any person, persons, or affected areas.  Va. Code Ann. § 32.1-48.08(A).  To quarantine an affected area, the Governor must declare a state of emergency.  Va. Code Ann. § 32.1-48.09(B). To establish quarantine, the commissioner will issue an order and then file a petition for an ex parte order from the court for authorization.  Va. Code Ann. § 32.1-48.09(A),(D), and (E).  Any person subject to the commissioner’s order of quarantine, or a court-ordered extension, can appeal.  Va. Code Ann. §32.1-48.010(A).  If there are multiple appeals, the cases can be consolidated if several factors are met, including whether the “all parties to the appeals will be adequately represented in the consolidation.” Va. Code Ann. §32.1-48.010(E).  Persons who are requesting judicial review of the order of quarantine “…shall have the right to be represented by an attorney in all proceedings.  If the person is unable to afford an attorney, counsel shall be appointed for the person by the circuit court for the jurisdiction in which the person or persons who are subject to the order of quarantine reside or, in the case of an affected area, by the circuit court for the jurisdiction or jurisdictions for the affected area. Counsel so appointed shall be paid at a rate established by the Supreme Court of Virginia from the Commonwealth’s criminal fund.”  Va. Code § 32.1-48.010(J). 

Alternatively, for communicable diseases of public threat and upon a determination of exceptional circumstances, the commissioner may order the isolation of a person or persons.  Va. Code Ann. § 32.1-48.011(A)&(B).  In this context, “isolation” is defined as “the physical separation, including confinement or restriction of movement, of an individual or individuals who are infected with or are reasonably suspected to be infected with a communicable disease of public health threat in order to prevent or limit the transmission of the communicable disease of public health threat to other uninfected and unexposed individuals.” Va. Code Ann. § 32.1-48.06.  The procedure the commissioner must follow for an order of isolation is similar to that of an order of quarantine outlined above.  See Va. Code Ann. § 32.1-48.012.  “Any person or persons subject to an order of isolation or a court-ordered confirmation or extension of any such order pursuant to this article may file an appeal of the order of isolation.”  Va. Code Ann. § 32.1-48.013(A).  If there are multiple appeals, the cases can be consolidated if several factors are met, including whether the “all parties to the appeals will be adequately represented in the consolidation.”  Va. Code Ann. §32.1-48.013(E).  Persons who are appealing any order of isolation “shall have the right to be represented by an attorney in all proceedings.  If the person is unable to afford an attorney, counsel shall be appointed for the person by the circuit court for the jurisdiction in which the person or persons who are subject to the order of isolation reside or, in the case of an affected area, by the circuit court for the jurisdiction or jurisdictions for the affected area.  Counsel so appointed shall be paid at a rate established by the Supreme Court of Virginia from the Commonwealth’s criminal fund.”  Va. Code § 32.1-48.013(J).