Quarantine Authority in Montana
Thursday, June 18, 2020
By Lars Phillips
The history of quarantine authority in the United States is contentious; fears of threatening diseases our collective consciousness barely remembers (e.g. cholera and typhus), led to acts that, even in today’s climate, seem incomprehensible (e.g. groups of armed men preventing train passengers from disembarking due to fear of infection).1
Inevitably, quarantine restrictions limit fundamental freedoms and individual autonomy, like the freedom of movement.2 To quarantine, government must stretch to the limits of its emergency powers to impose restrictions that are, at best, loosely moored in statutes and regulations. Those statutes and regulations are at once relatively brief and exceptionally broad.3 Under the circumstances, it would be reasonable to question whether any quarantine measures could survive the strict scrutiny standard courts typically apply to governmental restrictions on fundamental rights. But despite their seemingly tenuous legal foundations, history suggests courts are reluctant to interfere with quarantine measures.
In December 2019, a new coronavirus, now named severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2), emerged in Wuhan, China.4 The disease caused by this virus is referred to as COVID-19 (CO for corona, VI for virus, D for disease, 19 for the year of discovery).5 While current research suggests most cases of COVID-19 do not require medical intervention, severe cases can lead to high fever, pneumonia, and organ failure.6
SARS-CoV-2 shares similarities with two other well-known viruses — severe acute respiratory syndrome (SARS-CoV) and Middle Eastern respiratory syndrome (MERS-CoV), and is easily transmitted between humans.7 Based on early estimates, every individual infected with SARS-CoV-2 is likely to infect approximately two individuals — resulting in exponential growth of infections.
Importantly, studies have documented that the spread of SARS-CoV-2 can be slowed through the implementation of mitigation measures.8 Specifically, studies have found that implementation of quarantine, isolation, and social distancing may contain the spread of the virus.9 These tactics became apparent in March, as government officials ordered the closure of schools, restaurants, bars, and other places where people typically gather.
In other words, mitigation measures are focused on creating circumstances where each infected person transmits the virus to one individual (or less), instead of two (or more) individuals, thereby stopping exponential growth of infections. The virus will still spread, but it will not overwhelm the healthcare system with the consequence of otherwise-preventable deaths.
Basis of quarantine authority
When dealing with infectious diseases, state and local health officials are critical decision makers with relatively unlimited authority.10 Whether the seemingly limitless nature of their authority is appropriate or a function of a community’s response to an existential threat is an open question. Local health boards, in particular, are on the front lines. Such boards are required to adopt regulations that protect the public health, provided that those rules do not conflict with statewide rules. Moreover, the statutory authority of local health boards does not require an emergency declaration — meaning these boards may be the first governmental agency to respond to a health crisis.11
In the context of an infectious virus such as SARS-CoV-2, a local health board must prevent and improve “conditions of public health importance” through epidemiological tracking and investigation (contact tracing), screening and testing, isolation and quarantine measures, collecting and maintaining health information, and adopting any other public health measures allowed by law.12 Additionally, a local health board must “bring and pursue actions and issue orders necessary to abate, restrain, or prosecute the violation of public health laws, rules, and local regulations.”13
The statutes governing a local government’s quarantine authority are a clear indication that the Montana Legislature has delegated significant authority to local health boards. Due to practical necessity, these statutes provide wide latitude for health officials to take whatever actions the circumstances may require. These statutes offer few explicit limits on health officials’ authority, and as such, Courts are left to apply constitutional tests to the quarantine measures themselves—which are often adopted with little to no public process.
For better or worse, there is relatively little caselaw directly considering the legal soundness of quarantine restrictions. This could be due to the fortunately infrequent need for quarantine measures since the development of strict scrutiny jurisprudence. Or, it could be due to the courts’ unwillingness to interfere with a fundamental power of the state: the police power.
Quarantine and the police power
In construing the source and scope of the police power, the Montana Supreme Court has invoked the maxim salus populi est supma lex—the welfare of the people is the supreme law.14 Put another way, police power is the foundational principle upon which all civil government is built.15 To that end, “police power extends to the protection of the life, limbs, health, comfort and quiet of all persons, and the protection of all property within the state.”16 Although the spread of COVID-19 might lack any modern precedent, history provides some guidance.
In the late winter and spring of 1951, Yellowstone County confronted “several” cases of canine rabies.17 State and local health officials enacted an emergency quarantine of all cats and dogs in Yellowstone County to contain the outbreak. The quarantine required that all cats and dogs be vaccinated and kept restrained and authorized law enforcement to exterminate any cats or dogs caught roaming at large.18
Unfortunately, law enforcement had to exterminate at least one dog during the quarantine. When the dog’s owner sued for damages, asserting the government had taken her property without due process, the Montana Supreme Court held the quarantine order was squarely within the police power. The Court discussed the circumstances that led to the quarantine order, but only in terms of the negligence claims law enforcement could have faced if it had not shot the untethered dog. The Court held that the government action was an appropriate exercise of the police power “regardless of any statutory or constitutional provisions whatever.”19
Read broadly, Ruona stands for the proposition that “[a]ny rule made by the board of health which has a reasonable and direct relation to” a threat to the public health is a proper exercise of the police power, and further, that “the determination as to the means of meeting a threatening situation [is] vested in the board of health, and not in the courts.”20
There are many differences between “several” cases of rabies in Yellowstone County in 1951 and the hundreds of confirmed cases of COVID-19 across Montana. These differences, however, are more a matter of degree than of kind. COVID-19 has a far lower mortality rate than cases of rabies in humans, but SARS-CoV-2 is highly infectious and capable of rapid spread. Given the experiences of China and Italy, and the current lack of a vaccine for COVID-19, emergency circumstances certainly exist requiring decisive and dramatic action.
A century ago, the state faced a pandemic that forced state and local officials to implement many of the same quarantine measures being considered today. In 1918, the Spanish flu forced officials to close schools, churches, theaters, and dance halls.21 Sporting events and other public gatherings were cancelled, and even large funerals were no longer allowed.22
Despite the scope and severity of these quarantine measures, it appears the Court was never asked to review the reasonableness or constitutionality of the governmental response to the Spanish flu. In the absence of caselaw, the measures stand as a practical precedent for the state’s broad police powers to address COVID-19.
Historically, this should be unsurprising. Consider the example provided by a local health board’s action in Cambridge, Massachusetts.23 If necessary for public health or safety, Massachusetts law allowed a local health board to require, and force, vaccination of all inhabitants over twenty-one years of age. In 1902, in the midst of a smallpox epidemic, the Cambridge health board determined that vaccination against smallpox was necessary and ordered the same. A resident refused vaccination was criminally prosecuted and convicted.24
Subsequently, the question concerning the scope and effect of the statute at issue arrived at the United States Supreme Court. The Court noted state constitutions are fundamentally social compacts among all citizens to promote the common good.25 The consequence and benefit of this bargain is the occasional exchange of freedom for security. In the context of a pandemic, the pendulum may swing further towards security than most thought possible, at the clear expense of civil liberties and human rights.
Boundaries of quarantine authority
Because the authority of state and local health officials—granted by statute and grounded in the police power—has been relatively unchallenged and unconstrained, the outer limits of their authority in the face of a pandemic remains largely undefined.
In 1906, the Montana Supreme Court implied that a local health board has the authority to construct, at its citizens expense, a quarantine hospital, including purchasing the requisite land, if circumstances required.26 In 1922, the Court recognized the authority of a local health board to require the sheriff to quarantine and hold an individual with a contagious, communicable disease.27
In 1960, the Court considered a prior version of a similar statute granting local health boards the authority to enact rules and regulations “pertaining to the prevention of disease and the promotion of public health.”28 The vagueness of this grant of authority prompted the Court to wonder whether a local health board could “prescribe a series of physical exercises for the populations within their areas for the promotion of public health.”29 Further, the Court implied that statutes that do not provide for review of actions taken in the furtherance of public health may run afoul of due process requirements.
Ultimately, the Court invalidated the statute as an unconstitutional delegation of power because it provided the local health board “unascertainable limits within which to act,”30 raising the question of whether today’s statutes would survive similar review. In other words, do the current statutes contain appropriate due process safeguards and provide, with “reasonable clarity,” the limits to a local health board’s authority?
For actions pursuant to the state’s police power, based in the uniformly broad interpretation of the same, it can be argued that the only ‘ascertainable limit’ with which a local health board must comply is the obligation to ensure its actions are not clearly oppressive and arbitrary.31 From a more localized perspective, administrative guidance from the Montana Department of Public Health and Human Services does place some limitations on a local health board’s exercise of its authority. For example, the Department has set out specific notice requirements that must be adhered to in the event a patient is isolated or when individuals who have come into contact with an infectious disease are quarantined.32
Looking forward, examples of action in the global effort against the spread of SARS-CoV-2 can provide interesting thought experiments into the scope of measures local health boards can enact. For example, Israel is currently using citizen’s mobile phone data to identify and track, and enforce quarantines on, infected individuals. In order to do so, Israel passed an emergency law. Based on the discussion above, could a local health board pass such a measure in Montana?
On March 13, California Gov. Gavin Newsom issued an emergency order announcing, in part, the ability of the state to commandeer property, including hotels and medical facilities, as necessary for quarantining, isolating, or treating individuals infected with COVID-19. Though it has not proven necessary during this pandemic, the Montana Supreme Court has implied that local health boards have the authority to build quarantine hospitals. Is it unreasonable to think they do not have the power to commandeer hotels to create them?
The Importance of Advocacy
Consider the story related by Professor Felice Batlan in her article "Law in the Time of Cholera: Disease, State Power, and Quarantines Past and Future": In September 1892, the ship Normannia arrived in New York, with two passengers infected with cholera. The passengers on the Normannia were ‘cabin-class.’ Tickets for cabin-class were far more expensive than tickets for ‘steerage-class.’33 New York officials proceeded to quarantine all passengers. Cabin-class passengers were allowed to remain on board, while steerage-class passengers were delivered to hastily constructed holding facilities.34
While cabin-class passengers publicly excoriated officials for preventing their departure from the ships, it soon became apparent that the steerage-class quarantine experience was even more horrific. Reports found that the quarantine camps contained conditions “so deplorable and unsanitary that it is difficult . . . to describe it in temperate language.” The lack of toilet facilities, for example, relegated individuals to use sections of a rocky beach both to relieve themselves as well as bathe, with attendant consequences—including the needless infection of otherwise healthy individuals.35
While lawyers and the judicial system were involved in the dispute over whether cabin-class passengers could disembark, the tribulations of steerage-class passengers went unremedied for some time.
What role should lawyers play in the current pandemic? The Montana Constitution, and its emphasis on individual rights, places the state in a unique position. Bacus v. Lake County and Caselli inform that due process still matters, even in the face of an infectious disease. Marginalized populations need advocates—and no population more so than those made vulnerable by operation of law. Concerns related to incarcerated individuals provide an example. To that end, our Chief Justice has taken extraordinary steps to indicate, on some level, that the risks posed to these individuals by SARS-CoV-2 may outweigh the value of continued incarceration in certain circumstances.
It is incumbent upon state and local governments to act to protect the public health—Ruona v. Billings tells us that to do otherwise may be negligent. These actions impact all aspects of our daily life. They are as necessary as they are extreme. On March 13, the day the first in-state cases were announced, the idea of closing bars and restaurants — let alone stay-at-home directives — may have seemed preposterous, and yet it was not the first time in Montana’s history such economically painful measures had to be taken.
Though stay-at-home directives in Montana have been replaced by a phased reopening, COVID-19 is still here and further action by state and local officials could still be on the horizon. With each act to combat the pandemic, compromises will be made, and unintended consequences will follow. If it is incumbent upon the state to protect the public health, it is likewise incumbent upon it to provide an opportunity for aggrieved parties to be heard and a remedy for the unintended consequences those protections cause.
Lars Phillips is an attorney practicing in Bozeman. Lucas Hamilton is an attorney practicing in Helena.
1 Felice Batlan, Law in the Time of Cholera: Disease, State Power, and Quarantines Past and Future, 80 Temple Law Review 53 (2007) (providing an excellent summary of the evolution of quarantine law and contest between federal and state authority).
2 Shapiro v. Thompson, 394 U.S. 618, 630 (1969); United States v. Guest, 383 U.S. 745, 757–758 (1966); Crandall v. Nevada, 73 U.S. 35, 44 (1868).
3 See e.g., Mont. Code Ann. §§ 10–3–104, 50–2–116.
4 Wei-jei Guan, Ph.D., et al, Clinical Characteristics of Coronavirus Disease 2019 in China (February 28, 2020) (available at: https://www.nejm.org/doi/full/10.1056/NEJMoa2002032)
5 CDC, Coronavirus Disease 2019 (COVID-19) Frequently Asked Questions (available at: https://www.cdc.gov/coronavirus/2019-ncov/faq.html).
6 Tianbing Wang, et al, Comorbidities and multi-organ injuries in the treatment of COVID-19, The Lancet (March 21, 2020) (available at: https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(20)30558-4/fulltext)/
7 Guo, Y., et al, The origin, transmission and clinical therapies on coronavirus disease 2019 (COVID-19) outbreak – an update on the status, Military Med Res 7:11, at 2 (2020) (available at: https://doi.org/10.1186/s40779-020-00240-0).
8 Zhang, Sheng, et al, Estimation of the reproductive number of Novel Coronavirus (COVID-19) and the probable outbreak size on the Diamond Princess cruise ship: A data-driven analysis, Int. J. Infect. Dis. 2020 (February 22, 2020) (available at: https://doi.org/10.1016/j.ijid.2020.02.033).
9 Roy M. Anderson, et al, How will country-based mitigation measures influence the course of the COVID-19 epidemic? 395 The Lancet 10228, at 931–934 (March 9, 2020) (available at: https://doi.org/10.1016/S0140-6736(20)30567-5).
10 Mont. Code Ann. § 50–2–116.
11 Compare id. (general authority of health board to adopt regulations for the control of communicable diseases) with Mont. Code Ann. § 10–3–104 (general authority of governor following declaration of emergency or disaster).
12 See Mont. Code Ann. § 50–2–116(f).
13 Id. at § 50–2–116(i).
14 Ruona v. Billings, 136 Mont. 554, 557–558, 323 P.2d 29, 31 (Mont. 1958).
15 Id., 323 P.2d at 31; accord Crandall, 73 U.S. at 39 (police power “is indispensable to the existence of a State government”).
16 In re Mont. Pac. Oil & Gas Co., 189 Mont. 11, 14, 614 P.2d 1045, 1047 (Mont. 1980) (quoting Ruona, 136 Mont. at 558, 323 P.2d at 31).
17 Ruona, 136 Mont. at 556, 323 P.2d at 30.
18 Id., 323 P.2d at 30.
19 Id. at 560, 323 P.2d at 32.
20 Id. at 559, 323 P.2d at 31 (citations omitted).
21 Tracy Tornton, 100 years ago: ‘Spanish flu is epidemic in Butte and drastic measures must be taken . . .’, Montana Standard, Nov. 4, 2018 (available at https://mtstandard.com/lifestyles/years-ago-spanish-flu-is-epidemic-in-butte-and-drastic/article_725d50c7-974d-56d5-b0de-2585e8d0edc7.html); Lorna Thackeray, A century ago, Spanish flu ravaged Billings in community’s deadliest epidemic, Billings Gazette, Dec. 3, 2018 (available at https://billingsgazette.com/news/local/a-century-ago-spanish-flu-ravaged-billings-in-communitys/article_2a899a1e-ac0f-5210-9461-c2300dbbb776.html).
22 Tornton, supra, note 22; Thackeray, supra, note 22.
23 See Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11, 12 (1905).
24 Id. at 12–14.
25 Id. at 26–28.
26 Yegen v. Bd. of Comm’rs of Yellowstone Cty., 34 Mont. 79, 85 P. 740, 743 (Mont. 1906).
27 Ex parte Caselli, 62 Mont. 201, 204 P. 364, 364–365 (Mont. 1922)
28 Bacus v. Lake Cty., 138 Mont. 69, 79, 354 P.2d 1056, 1061 (Mont. 1960).
29 Id., 354 P.2d at 1061.
30 Id. at 81, 354 P.2d at 1062.
31 See e.g. Jew Ho v. Williamson, 103 F. 10 (C.C.N.D. Cal. 1900); Wong Wai v. Williamson, 103 F. 1 (C.C.N.D. Cal. 1900).
32 See e.g. A.R.M. 37.114.308 (providing notice requirements for isolated patients); A.R.M. 37.114.307 (providing requirements when quarantine of individuals is warranted).
33 Batlan, supra, note 2, at 81.
34 Id., at 81–85.