Quarantines: A Quandary for Courts


This is the third in a series of blog posts about judicial systems’ response to the coronavirus (SARS-CoV-2 is its technical name; Covid-19 is the disease it causes) outbreak and the justice systems’ active participation in a whole-of-society-approach (WOSA) to national security and safety threats such as Covid-19.

As the coronavirus (Covid-19) spreads, it will cause extensive quarantines of people infected by or exposed to the disease. This will lead to disputes that courts will be asked to resolve. Courts will need to act swiftly and to coordinate their decisions and actions with other parts of the government and civil society. But this is not what courts’ structure and theoretical underpinnings – separation of powers, judicial independence, and precedence -- are designed to do. My colleagues and I have argued in an article in the last issue of the Court Manager and in the first of the posts in this series that these impediments to swift and coordinated actions in a whole-of-society-approach (WOSA) to national security and safety threats  need to be overcome. Quarantine laws and statutes in many states have not been updated or tested since the influenza outbreak of 1918, which killed more than 675,000 Americans, and for that and other reasons the courts are not prepared to address a potential pandemic.

Not in My Back Yard

As reported by Jeff Rowe and Yasmeen Abutaleb of the Wall Street Journal, last week Federal District Court Judge Josephine Staton ordered the city of Costa Mesa, California, and state and federal officials to quickly resolve their differences in a dispute about where and how to quarantine Americans repatriated from Asia who are infected or exposed to Covid-19. She cautioned the city officials that they do not have the authority to block the transfer of people under federal quarantine at the Travis Air Force Base in California to the Fairview Developmental Center, a closed mental health facility in Costa Mesa. She also chided state and federal officials for not providing good information about who would care for  those infected with or exposed to the virus and what would happen if their conditioned worsened and they would require hospitalization.

The city won a preliminary injunction to temporarily block the transfer of up to 50 people to the Fairview Center, which city officials described as “dilapidated” and not equipped to handle patients infected with the virus. Costa Mesa officials and residents argued that the Center is in a residential neighborhood and that children use the fields on the center for athletic practices. One resident worried that because the Center is not a secure facility the virus could easily spread to vulnerable city residents like her 10-year old son who has a primary immunodeficiency.

A Direct Appeal to President Trump

Perhaps aware of the fact that city officials lack the legal authority to block the transfer of repatriated Americans infected by or exposed to the virus, in a similar case in Anniston, Alabama, city officials along with high-ranking state officials, including the governor, a U.S. senator and a U.S. representative, appealed directly to President Donald Trump to block the transfer of quarantined virus-infected patients to a Federal Emergency Management (FEMA) building in a former army base. Trump assured them that the administration would not make the transfer.

Can a city successfully challenge where and how state, or the federal government decides to quarantine people infected by or exposed to Covid-19? Although the Costa Mesa and Anniston cases show that localities cannot, the high anxiety about the growing threat of the virus outbreak makes it unlikely that local officials will stop challenging quarantine decisions made by state and federal officials.

Urgency and Haste Versus Deliberation and Contemplation

In its response to the Costa Mesa lawsuit, the federal government argued that time and expedition was of the essence in dealing with the Covid-19 outbreak requiring “action in hours and days, not days and weeks.” But courts are not designed to act in haste, but rather in contemplation and thought.  “When decisions are made in a hurry, mistakes are made,” said Judge Stanton in her criticism of state and federal officials’ response to the public emergency presented by Covid-19 in Costa Mesa.  Her statement can be seen at odds with the sense of urgency and the requirement of “action in hours and days” urged by the federal government response to the lawsuit.

Much about Covid-19 is unknown and governments at the local, state, and federal level will have to act when they do not have all the facts. This will put judges and courts in an unfamiliar and uncomfortable position such as that experienced on October 30, 2014 by Chief Judge of the Maine District Courts Charles LaVerdiere. On that day, he received a call that the state had filed a petition to quarantine a nurse returning from Ebola-stricken West Africa who planned to attend a large social function that evening.  LaVerdiere needed to decide quickly whether to allow the nurse’s quarantine. He determined that Maine had not met its burden of proof and denied the quarantine although he did require cooperation with monitoring and placed limits on her travel.

Judge LaVerdiere’s experience and the Covid-19 quarantine disputes in Costa Mesa and Anniston underscore the need for courts’ robust participation in a whole-of-society response to threats to our national safety and security.

Copyright CourtMerics 2020. All rights reserved.

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