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 State Board of Health is empowered to adopt rules “for the imposition and use of quarantine and isolation” and “…the prevention and control of infectious and noninfectious diseases…”. Rev. Code Wash. § 43.20.050(2)(e), and (f).  In addition, each local board of health is empowered to “provide for the control and prevention of any dangerous, contagious or infectious disease within the jurisdiction of the local health department.”  Rev. Code Wash. § 70.05.060(4).  The procedures for isolation and quarantine due to communicable and other diseases, are set out in the administrative code at WAC § 246-100-040.

A local health officer has authority to issue an emergency detention order for the quarantine or isolation of a person or group of persons, or to seek an ex parte order from the court for their involuntary detention.  WAC § 246-100-040.  Though quarantine and isolation of an entire area is not specifically mentioned in the regulations, it is contemplated.  See WAC § 246-100-040(3)(c) (notice of emergency detention order to be provided to person, group of persons, or where notice to a group is impractical, posted “…in a conspicuous place in the premises where isolation or quarantine has been imposed.”); and, § 246-100-040(4)(f)(ii) (Ex parte order should “Identify the isolated or quarantined persons or groups by name or shared or similar characteristics or circumstances”).  Where the health officer issues an emergency detention order, the order is to be accompanied by notice stating: “You have the right to petition the superior court for release from isolation or quarantine in accordance with WAC 246-100-055. You have a right to legal counsel. If you are unable to afford legal counsel, then counsel will be appointed for you at government expense and you should request the appointment of counsel at this time. If you currently have legal counsel, then you have an opportunity to contact that counsel for assistance.”  WAC § 246-100-040(3)(d). The right to counsel is specifically set forth in WAC § 246-100-060, “A person or group of persons isolated or quarantined pursuant to WAC 246-100-040 has a right to be represented by counsel if they so elect. If such person or group requests counsel and cannot afford counsel, the court shall appoint counsel consistent with the provisions of chapter 10.101 RCW. The local health officer must provide adequate means of communication between such persons or groups and their counsel.”  Where numerous individual claims are made, the court may consolidate the claims into a group claim if, among other considerations, “The entire group will be adequately represented in the consolidation.”  WAC § 246-100-065(4).  The section pertaining to procedures for isolation and quarantine is superseded by “state statutes, rules, and state and federal emergency declarations governing procedures for detention, examination, counseling, testing, treatment, vaccination, isolation, or quarantine for specified health emergencies or specified communicable diseases, including, but not limited to, tuberculosis and HIV…”. WAC § 246-100-040(7).

For tuberculosis, “…each health officer is hereby invested with full powers of inspection, examination, treatment, and quarantine or isolation of all persons known to be infected with tuberculosis…”. Rev. Code Wash. § 70.28.031.  Where a person with tuberculosis is refusing to obey the health officer’s order of quarantine or isolation, the officer may apply to superior court for a compliance order.  Rev. Code Wash. § 70.28.035; see also, § 70.28.037 (Court can order confinement to a designated facility for isolation and quarantine).  “Violation of an order of quarantine or isolation is a criminal offense.”  Rev. Code Wash. § 70.28.031(g).  The right to counsel is not addressed in the statute. However, the administrative code provisions related to tuberculosis control do provide for a right to counsel.  WAC 246-170-051.  If voluntary compliance cannot be obtained, the health officer may initiate procedures for involuntary detention. WAC 246-170-051(1).  The health officer can issue an order for detention, or petition the court for an ex parte order.  In either case, at the time of detention the person is to be provided with notice stating: “You have the right to a superior court hearing within seventy-two hours of detention, excluding holidays and weekends. You have the right to legal counsel. If you are unable to afford legal counsel, then counsel will be appointed for you at government expense and you should request the appointment of counsel at this time. If you currently have legal counsel, then you have an opportunity to contact that counsel for assistance.”   WAC § 246-170-051(3).  The health officer will follow up with a court petition for detention within one judicial day of the involuntary detention.  WAC § 246-170-051(4).  The person has a right to “…be represented by an attorney at any hearing held on the petition. If the person is indigent and requests appointment of legal counsel, legal counsel shall be appointed at public expense at least twenty-four hours prior to the superior court hearing.”  WAC § 246-170-055(1).

Title 70, Chapter 24 of the statutory code, outlines the Control and Treatment of Sexually Transmitted Diseases.  Where a person with a sexually transmitted disease engages in behavior that endangers the public health and does not voluntarily comply with a health officer’s directives, the state or local health officer will issue a public health order which will include notice of the person’s right to appeal the order in court.  Rev. Code Wash. § 70.24.024(5)(a). Alternatively, the health officer can issue the health order and file a petition for compliance.  Rev. Code Wash. § 70.24.024(5)(b).  At the hearing “…the person subject to the health order may have an attorney appear on his or her behalf at public expense, if necessary.”  Rev. Code Wash. § 70.24.024(5)(c). Where these procedures have been exhausted and the person continues to be an “…imminent danger to the public health…” the public health officer can request the prosecuting attorney to file a petition for detention.  Rev. Code Wash. § 70.24.034(1).   Upon the filing of the petition, the court can order immediate custody for up to 72 hours.  Rev. Code Wash. § 70.24.034(2).  A hearing will be held no later than 48 hours after receipt of the order, where the person “…may have an attorney appear on his or her behalf in the hearing at public expense, if necessary.”  Rev. Code Wash. § 70.24.034(3); see also, § 70.24.034(2).