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Public Health Law Judicial Reference Guide for Kentucky Courts

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Public Health Law Judicial Reference Guide for Kentucky Courts Public Health Law Judicial Reference Guide For Kentucky Courts CENTER FOR PUBLIC HEALTH LAW PARTNERSHIPS UNIVERSITY OF LOUISVILLE A COLLABORATING CENTER OF THE PUBLIC HEALTH LAW PROGRAM Centers for Disease Control & Prevention Authors Mark A. Rothstein, J.D., Director, Center for Public Health Law Partnerships Herbert F. Boehl Chair of Law and Medicine Director, Institute for Bioethics, Health Policy and Law University of Louisville School of Medicine Meghan K. Talbott, J.D. Research Associate, Center for Public Health Law Partnerships University of Louisville School of Medicine Amy R. Schofield, J.D., M.P.H. Former Project Director Center for Public Health Law Partnerships Associate, Wilmer Cutler Pickering Hale and Dorr, LLP Palo Alto, CA Hon. Linda L. Chezem, J.D. Associate Director for Professional Development Center for Public Health Law Partnerships University of Louisville School of Medicine Professor, Purdue University Acknowledgement The authors would like to thank the Kentucky judges and court administrators who helped facilitate the publication of this Reference Guide. We would especially like to recognize Judge Julia Adams, Michael Losavio, and Judge James Shake. The authors would also like to thank Robert Klein for his outstanding efforts in formatting the manuscript and directing the administration of this project. Disclaimers This Reference Guide has been reviewed by the Kentucky Circuit Judges Education Committee, but it is not an official publication of the Committee; it is not a rule of the Kentucky Supreme Court; and it is not a “manual” within the meaning of Civil Rule 1. It has been prepared to assist judges in the conduct of their duties. This publication was supported by Cooperative Agreement No. U50/CCU423386 from the Public Health Law Program of the Centers for Disease Control and Prevention (CDC). Its contents are solely the responsibility of the authors and do not necessarily represent the official views of the CDC. ii Preface In 1905, the United States Supreme Court’s landmark Jacobson v. Massachusetts ruling recognized the judiciary as both an enforcer of governmental public health policies and an arbiter of the conflicts between individual liberties and public interests that arise from governmental public health action. See generally Wendy E. Parmet et al., “Individual Rights versus the Public Health – 100 Years after Jacobson v. Massachusetts,” 352 New Eng. J. Med. 652 (2005). Despite this central role, most members of the judiciary have received little, if any, formal public health law training. The events of fall 2001 starkly illustrated that many prevailing public health laws and systems were incommensurate with emerging public health threats, both man-made and natural. These concerns were further heightened by the global epidemic of Severe Acute Respiratory Syndrome (SARS) and the emerging threat of avian flu. In recent years, attention has increasingly focused on public health legal preparedness, i.e., assessing current public health laws, updating those laws as needed, and educating the persons who enforce and interpret public health laws to ensure adequate and efficient responses to both emerging public health threats (e.g., emerging natural diseases, bioterrorism) and traditional public health concerns (e.g., vaccinations, tuberculosis) in the 21st century. Public health law is primarily state law, and several considerations make judicial interpretation of state public health law especially challenging. First, the majority of public health cases addressing infectious diseases or other conditions requiring the intervention of county or local health departments date to at least the early twentieth century. The applicability of this case law to modern public health challenges in a global community is questionable. Second, public health experts in court proceedings often use complex scientific terminology and public health science methodology (e.g., contact tracing) (see Appendix B for a Public Health Glossary). In some cases, judges will need to adapt legal parlance to the public health context. For example, at law the term “quarantine” means (a) the right of a widow to remain in her deceased husband’s principal home for a period of forty days following his death; (b) the holding of potentially contaminated ships and other vessels of transportation away from the general public for a specified period of time (originally, forty days); (c) the segregation of plants and animals to prevent the spread of agricultural diseases; or (d) the placement of a prisoner into solitary confinement. Although several of these definitions are clearly health-related, none specifically captures the most common public health usage of the term “quarantine” to describe the limitation of a healthy individual’s activities after that individual has been exposed to a communicable disease in order to prevent the spread of that disease during its period of communicability. Third, the application of many public health laws is complicated by the fact that the authorizing statutes predate current rules of evidence and procedure. Fourth, although public health orders are civil in nature, they often have significant impact on the liberty, property, and economic rights of individuals. Throughout the last half-century, the courts have developed a large body of law guiding the curtailment of individual rights by the state in the criminal context. However, no analogous body of law exists in the public health context, and the applicability of the criminal law to public health situations in which the individual has committed no wrongful or criminal act is fraught with legal difficulties. Finally, in the event of a public health emergency, the deliberative nature of the judicial process may be strained to keep pace with the rapid response and containment measures sought by members of the public health community. This Judicial Reference Guide was created as a significant part of the current public health emergency legal preparedness initiative underway at the Public Health Law Program of the Centers for Disease Control and Prevention (CDC). This work, initiated in early 2001, has generated draft model iii state public health legislation; training materials and programs for public health personnel, law enforcement agents, emergency management, and state attorneys general addressing issues such as the legal bases for coordinated responses to public health emergencies; checklists and other tools for assessing county- and state-level public health legal preparedness; and the CDC Public Health Emergency Legal Preparedness Clearinghouse, among other products and services. The Center for Public Health Law Partnerships was founded in October 2003, with funding from the Public Health Law Program, to improve legal preparedness by developing partnerships with public health agencies, judicial education organizations, and law enforcement training organizations. The Judicial Reference Guide is intended to protect the health and safety of communities by improving legal preparedness for both public health emergencies and more routine public health cases. In addition, it is our hope that this Reference Guide will increase communication between the judiciary and public health agencies at the community, state, and national levels and across a broad spectrum of public health issues. Although courts have historically been vital protectors of the public’s health (e.g., authorizing sanitary inspections, enjoining nuisances, enforcing vaccination requirements), relationships between public health agencies and the judiciary remain rare. In this new era of bioterrorism, emerging infectious diseases, and potential pandemics, courts play an even more critical role in protecting the public’s health. This Reference Guide is intended to be a tool that judges may use as they confront the range of public health issues that come to their courtrooms. We recognize that it would be impracticable to address each and every aspect of the legal system potentially impacted by public health concerns. Bench books or reference guides are not tomes of law; rather, they are readily accessible legal references for judges to use in the courtroom, providing, for example, procedural frameworks, statutory texts, summaries of relevant case law, and model orders. We have chosen, therefore, to focus this Reference Guide on four topical areas in which the intersection of public health and the law is particularly salient: (1) searches, seizures and other such government actions to ensure the public health; (2) judicial proceedings centered around the permissibility of limiting certain individual liberties in order to protect the public health; (3) operation of the courts amid public health threats; and (4) the role of the courts during a state of emergency triggered by public health concerns. As such, this Reference Guide will not address in detail the important, regulatory functions undertaken by many state and local public health departments (e.g., licensing of health care institutions, Medicaid administration, provision of clinical services). Before delving into these four topical areas, we have devoted the opening chapters of the Reference Guide to an overview of issues regarding the legal nature and authority of each of the institutions whose intersection is at the heart of this document – the Kentucky judiciary and the Kentucky public health system. These introductory chapters consider questions such as: Which Kentucky courts have jurisdiction over public health matters? What
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