A Legal Analysis of Mississippi's Emergency Powers Statutes And
Total Page：16
File Type：pdf, Size：1020Kb
Report to the Mississippi Legislature A Legal Analysis of Mississippi’s Emergency Powers Statutes and Actions Taken During the COVID-19 Pandemic #647 November 17, 2020 The Mississippi Legislature Joint Committee on Performance Evaluation and Expenditure Review PEER Committee SENATORS REPRESENTATIVES LYDIA CHASSANIOL TIMMY LADNER Chair Vice Chair KEVIN BLACKWELL RICHARD BENNETT DEAN KIRBY Secretary CHAD McMAHAN CEDRIC BURNETT SOLLIE NORWOOD CAROLYN CRAWFORD JOHN POLK BECKY CURRIE CHARLES YOUNGER JERRY TURNER PERCY WATSON TELEPHONE: Post Office Box 1204 OFFICE: (601) 359-1226 Jackson, Mississippi 39215-1204 Woolfolk Building, Suite 301-A 501 North West Street FAX: James A. Barber Jackson, Mississippi 39201 (601) 359-1420 Executive Director www.peer.ms.gov November 17, 2020 Honorable Tate Reeves, Governor Honorable Delbert Hosemann, Lieutenant Governor Honorable Philip Gunn, Speaker of the House Members of the Mississippi State Legislature On November 17, 2020, the PEER Committee authorized release of the report titled A Legal Analysis of Mississippi’s Emergency Powers Statutes and Actions Taken During the COVID- 19 Pandemic. Senator Lydia Chassaniol, Chair This report does not recommend increased funding or additional staff. Table of Contents Letter of Transmittal ....................................................................................................................................... i Report Highlights ............................................................................................................................................ v Introduction ...................................................................................................................................................... 1 Authority ................................................................................................................................................. 1 Scope and Purpose ................................................................................................................................ 1 Method ..................................................................................................................................................... 1 What is the History and Scope of the Executive Branch’s Powers to Address Emergencies in Mississippi?... ......................................................................................................................................... 3 U.S. Supreme Court Decision Relative to Emergency Powers ....................................................... 3 Mississippi Supreme Court Decision Relative to Emergency Powers ......................................... 5 Mississippi’s Early Laws Addressing Emergencies ......................................................................... 6 Mississippi’s More Recent Laws for Addressing Emergencies ..................................................... 8 Were Mississippi’s Emergency Powers Laws Adequate to Protect Mississippi Citizens from the Threat of the COVID-19 Pandemic? ................................................................................................. 11 Criteria for Evaluating the Adequacy of a State’s Emergency Powers Laws ........................... 11 Adequacy of Mississippi’s Current Emergency Powers Laws ..................................................... 12 Were the Actions Taken by State and Local Government Officials During the COVID-19 Pandemic Appropriate? ........................................................................................................................................ 19 State Government Officials’ Responses to the COVID-19 Pandemic ........................................ 19 Local Government Officials’ Responses to the COVID-19 Pandemic ....................................... 25 Are There Statutory Changes to Mississippi’s Emergency Powers Statutes that the Legislature Should Consider? ................................................................................................................................ 29 Additional Recommendations .......................................................................................................... 30 Appendix A: Jacobson in the Era of COVID-19: Appeals to the Federal Courts ............................... 31 Appendix B: COVID-19 Cases in the State Courts .................................................................................. 42 Appendix C: Model Acts and Their Critiques .......................................................................................... 48 Appendix D: Statutory Limitations on the Duration of a Declared Emergency ................................ 53 PEER Report #647 iii List of Exhibits Exhibit 1: Appointments Affected by Executive Order 1499 .......................................................... 24 iv PEER Report #647 PEER Report #647 v vi PEER Report #647 A Legal Analysis of Mississippi’s Emergency Powers Statutes and Actions Taken During the COVID-19 Pandemic Introduction Authority In light of the COVID-19 worldwide pandemic, the PEER Committee reviewed state laws concerning the state’s capacity to deal with such emergencies. The Committee conducted this review in accordance with MISS. CODE ANN. Sections 5-3-51 et seq. (1972). Scope and Purpose Following Governor Tate Reeves’s March 14, 2020, declaration of a state of emergency due to the COVID-19 pandemic, it became obvious that Mississippi would face a public health emergency of major proportions. The government’s response to the pandemic required the Governor, the Mississippi Emergency Management Agency (MEMA), the Mississippi Department of Health (MSDH), and local governments to rely on the state’s emergency powers and issue orders that were controversial and intrusive since they limited how Mississippians functioned in their everyday lives. This report examines Mississippi’s statutes that govern the state’s response to emergency situations, specifically public health pandemics. In conducting this review, PEER sought to answer the following questions: 1. What is the history and scope of the executive branch’s powers to address emergencies in Mississippi? 2. Were Mississippi’s emergency powers laws adequate to protect Mississippi citizens from the threats of the COVID-19 pandemic? 3. Were the actions taken by state and local government officials during the COVID- 19 pandemic appropriate? 4. Are there statutory changes to Mississippi’s emergency powers statutes that the Legislature should consider? Method In conducting this review, PEER reviewed: • literature on the evolution of modern laws dealing with public health emergencies; • the history of Mississippi’s statutes dealing with the executive branch’s powers to address emergencies of varied types; • Mississippi’s current emergency powers statutes in light of several model laws and constitutional case laws from the U.S. Supreme Court, Mississippi courts, and other U.S. jurisdictions; and, PEER Report #647 1 • executive proclamations and orders in light of the powers conferred upon the executive branch of government by the Mississippi Constitution of 1890 and Mississippi statutes. 2 PEER Report #647 What is the History and Scope of the Executive Branch’s Powers to Address Emergencies in Mississippi? Legal authority for executive responses to emergencies has evolved incrementally over the past 100 years from narrow statutes and constitutional mandates designed to address specific issues, such as public health quarantines, or the suppression of insurrection or riots, to modern comprehensive statutes designed to ensure that state and local agencies are prepared to face the wide ranges of natural, technological, and man-made disasters that may occur at any time. Mississippi’s current body of emergency management statutes provides the Governor, executive branch agencies, and local governing authorities with broad powers to carry out emergency management functions to protect the health and welfare of Mississippi citizens. U.S. Supreme Court Decision Relative to Emergency Powers In its Jacobson v. Commonwealth of Massachusetts decision, the U.S. Supreme Court concluded that when addressing emergencies, a state can adopt regulations to protect the many in the face of a threat, even if the regulations impair the liberties of the few. The U.S. Constitution reserves to the states a broad authority to legislate for the health and welfare of each state’s residents. This authority is generally referred to as police power,1 with emergency powers being a subspecies of police power. Emergency response legislation in the United States presumes the existence of cooperative federalism2 in which the federal government and the states have critical roles. For example, this cooperative federalism is exhibited in a response to hurricanes and floods where the state and its political subdivisions act to address the immediate problems of public order and health, with the federal government acting to provide economic, and in some cases, technical assistance essential to long term issues of recovery.3 While considerable debate exists as to the scope of the federal government’s role in addressing pandemics, long established practices, statutes, and court decisions have articulated the roles and responsibilities of the states in addressing emergencies including epidemics, pandemics, and other public health emergencies. Jacobson v. Commonwealth of Massachusetts The constitutional breadth of a state’s police power to protect its residents from public health threats was first set out in a landmark