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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If the Governor has declared a state of emergency, the Governor may “provide for and require the quarantine or segregation of persons who are affected with or believed to have been exposed to any infectious, communicable, or other disease that is, in the governor’s opinion, dangerous to the public health and safety, or persons who are the source of other contamination, in any case where, in the governor’s opinion, the existing laws are not adequate to assure the public health and safety.” Haw. Rev. Stat. § 127A-13(a)(1).   Parties affected by an order of quarantine made pursuant to a state of emergency, may seek a preliminary or interlocutory injunction, or a temporary restraining order. Haw. Rev. Stat. § 127A-27.  No right to counsel is specifically articulated for quarantine orders issued pursuant to this authority.  

Outside the context of a state of emergency, the Department of Health and Human Services “…shall have authority in matters of quarantine and other health matters and may declare and enforce quarantine when none exists and modify or release quarantine when it is established.”  Haw. Rev. Stat. § 321-1(c).  In the context of infectious and communicable diseases, the Department of Health and Human Services, shall obtain an ex parte order from the court prior to or immediately after the quarantine of an individual.  Haw. Rev. Stat. § 325-8(e),(f). Quarantine is specifically defined for the infectious and communicable disease section, as the “…compulsory physical separation, including the restriction of movement or confinement of individuals or groups believed to have been exposed to or known to have been infected with a contagious disease, from individuals who are believed not to have been exposed or infected, by order of the department or a court of competent jurisdiction.”  Haw. Rev. Stat. § 325-8(a).  The individual subject to quarantine has the right “…to a court hearing to contest the ex parte order.”  Haw. Rev. Stat. § 325-8(g). 

The individual, or group of individuals, also has a right to counsel:

Upon written request, the court shall appoint counsel at state expense to represent individuals or groups of individuals who are or who are about to be quarantined pursuant to this section and who are not otherwise represented by counsel.  Adequate means of communication between those individuals or groups and their counsel and guardians ad litem shall be provided.

Haw. Rev. Stat. § 325-8(l).  If multiple individual challenges are filed, the Court may consolidate the cases if several factors are met, including that the “entire group will be adequately represented in the consolidation.”  Haw. Rev. Stat. § 325-8(m)(4).