Earlier today, the Gallatin County Health Board ran afoul of citizens who were denied the opportunity to provide public comment – a requirement of Montana state law. At odds were (1) health board’s intention to enforce Governor Bullock’s executive order on public meeting limitations and (2) established state law on health boards being required to take public comments. The two competing orders – one executive and one legislative – created a constitutional crisis of sorts that will be repeated during the rescheduled meeting on Friday.
SYNOPSIS: Local health boards are comprised of county commissioners and others appointed by commissioners. Health board members are largely uneducated in health and medicine. They are given broad – but vague – powers over the populace for what they subjectively determine to be in the interest of “public health.” Some legal precedent exists in Montana for mandating quarantines, masks, and compelling law enforcement to enforce their policies. However, the courts do not allow health boards to act in disregard of constitutional liberties or cancel due process. County Sheriffs and County Attorneys are an essential check-and-balance against the overreach of their authority.
Gallatin County is not the only jurisdiction in Montana whose health board is imposing controversial orders upon citizens (they are deciding to require masks, despite coronavirus being 66% less-deadly than the flu in Montana). The Missoula City-County Health Board mandated mask-wearing five days ago, mirroring the policies of more liberal and urban cities sprinkled across various “blue states” in America. The Carter County health nurse, Raquel Williams, has been terrorizing residents with home visits to inquire of their guests, tried to cancel hunting season, and demanded that the only local grocery store close (a class-action lawsuit against Williams and Carter County is pending). Valley County advertised an arm-band requirement for non-residents before the reporting of the Montana Daily Gazette drew the attention of Rush Limbaugh and Todd Starnes (the county then removed the fliers and apologized). Powder River County has encouraged citizens to snitch on their neighbors who were enjoying the outdoors. Madison County revoked some property rights as it related to recreational and rental properties.
In each of these cases, unelected health boards or their employees (public health officers) have commandeered great control over local populations.
Who are these health boards and what gives them the legal right to make decisions without being elected to office? Here are the facts:
Montana law requires the establishment of local health boards to be formed on both the city and county level (depending upon city size). The codes were added in 2014 and are entitled, “Title 50, Health and Safety Chapter 2: Local Boards of Health.” It is available here. Although city boards must also exist according to the ordinance for every “Class 1 and Class 2 city” (a 1st Class City has over ten-thousand people, a 2nd Class City has between five and ten-thousand people), cities may join with counties to form singular health boards (most do).
Code 50-2.104 requires the county boards to consist of all county commissioners and at least two individuals appointed by county commissioners. Additionally, there must be five members minimum and they are required to have three-year staggered terms. County health boards with 1st Class or 2nd Class cities have representatives of those cities (at least one) on the merged health board. There is no requirement for health board members to have medical backgrounds or degrees in health. Most members of health boards, statewide, do not have medical degrees.
One must remember that when citizens show up to give their input at health board meetings, it is not a situation where those without medical degrees are challenging physicians, but one in which citizens without medical degrees are providing input to other citizens who do not have medical degrees, either.
Funding for health boards include grants, federal and state funds, local levies, contributions by school boards, and private contributions. All health boards have at least one employee, a public health officer who is (1) is a physician (2) has a Master’s Degree in public health or (3) has “experience” equal to a Master’s Degree in the opinion of the county commissioners, who appoint the person. This means a public health officer may not have a Master’s Degree in medicine either, so long as they have “experience” in the medical field that satisfies whatever standard commissioners have set. If the commissioners do not appoint the public health official, the Department of Health and Human Services is permitted to do so.
Health Boards are advised on legal issues by the County Attorney, which is an elected office in Montana.
Health Boards are instructed in Montana law to hold regular meetings, at least quarterly, and special meetings as needs arise. They are to engage in “epidemiological tracking,” have oversight of screening and testing, configure quarantine policies (more on that in a minute), oversee the collection of “health data,” oversee health inspections, and provide educational opportunities for health officials.
Additionally, they are to pursue legal consequences for infractions of health codes, supervise sanitization of public establishments, and oversee the proper disposal of sewage.
It’s here that their legal power is sketchy and relatively (but not altogether) unchallenged in the State of Montana. Most of the tasks assigned to local health boards (above) are not laid out plainly in Montana Law, meaning that there is constant ambiguity as to the extent of their legal authority. Their ability to seek legal recourse for infraction of their health codes (many of which are not supported by Montana statewide legal codes) is dependent upon the willingness to prosecute the infractions by the County Attorney. This means the County Attorney is a check-and-balance on the authority of local health boards. Additionally, as seen in Gallatin County earlier today when the local sheriff told attendees he would not enforce mask mandates, local law enforcement must be willing to charge citizens with infractions of their health codes. This means that the County Sheriff is a check-and-balance on the authority of local health boards.
However, because Montana Code 50-2-124 issues a misdemeanor for any person who does not comply with rules adopted by a local board (the person shall be fined not less than $10 or more than $200), Governor Bullock’s office applies this to the County Sheriff. This means that if the sheriff does not enforce the will of the health board (theoretically) they could be charged with a misdemeanor. However, the sheriff would have to be prosecuted by the County Attorney, emphasizing the importance of the County Attorney as a check-and-balance to local health board authority. It is suggested, however, that if a prosecutor fails to prosecute the sheriff for disobeying the health board, the State Attorney General may intervene (an unprecedented – and unlikely – event in the realm of public health).
Also questionable constitutionally is the health board’s ability to level taxes without holding representative offices, as Montana Code 50-2-116 allows them to issue “fees to administer sewage control requirements.” Ostensibly, use of the term “fees” frees the language from clearer violations of constitutional law that would be present if the word “taxes” were used.
Sloppy language in Montana law provides little limit to a health board’s authority, reading, “[They must ] provide other services and functions as necessary.” One can imagine how an over-zealous health board may commandeer authority under the subjective phrase, “as necessary.”
When health boards make decisions, they must provide 48 hours notice to the public of meetings and allow public comment according to Montana Code 2-3-203; 2-3-212; 50-2-116. An agenda must be provided of the meeting in advance, so the public knows what decisions will be made. The law states, “[They must] allow the public a reasonable opportunity to participate prior to the board making a decision of significant public interest.” Additionally, minutes must be made available to the public after the fact.
Health officers, who are retained and employed by the board (see above), are allowed to (1) seek assistance of law enforcement (2) issue orders to compel compliance with their rules and (3) order inmates to be let out of jail if they are a risk to others. Again, the County Sheriff is a check-and-balance to the authority of health boards who may ask what is unreasonable or unconstitutional.
However, at no time are health boards allowed to overrule or deny Montanans or their constitutional rights to civil liberties or due process (see below):
In regard to quarantines mandated by local health boards – which would include mask-wearing, a form of quarantine that limits bodily autonomy – the language in Montana law is vague and largely unhelpful. However, the Montana Lawyer, the publication of the Montana Bar Association, offered their thoughts on this matter in a recent newsletter.
In the post, entitled Quarantine Authority in Montana, the publication pointed out there is indeed a legal precedent for giving power to local authorities over public health issues. The Montana Supreme Court ruled in 1906 that local health boards could create quarantine hospitals (they did not rule the hospitals could be made mandatory for the infected, let alone the well). In 1922, the Montana Supreme Court ruled that the local health board could order a sheriff to detain an individual in quarantine if they were infected with a dangerous communicable disease. However, in 1960, the Montana Supreme Court chided the vagueness of laws giving local health boards carte blanche authority to do whatever is subjectively decided was in the interest of public health and decided that they must not do anything that cannot be evaluated or overturned (thus taking away the rights to due process).
In fact, the court struck down the vagueness of Montana law for giving local health boards “unascertainable limits within which to act.” That “vague law” regarding health board authority has since been replaced by other vague laws regarding their authority (see above) which have not yet been re-challenged in the court because a cause has not arisen that required it. However, the publication argues that the only limit to health board authority is that its “decisions are not capricious or arbitrary.”
Is Montana then stuck with the reality that local health boards can wear masks and instruct healthy people to self-quarantine? Probably not. It would be hard to argue in court, given the reasonable comparable nature between COVID-19 and other just-as-deadly (or non-deadly, as the case may be) viruses that the response to the Wuhan Flu is indeed arbitrary and unreasoned. When put shoulder-to-shoulder, it should seem unreasonable to require a number of the restrictions (like face masks) for coronavirus but not something like the flu, which has a comparable death-rate. Local health boards should also be put on notice that limiting event participation in church services but not #BlackLivesMatter protests is the very definition of arbitrary and capricious.
Finally, keep in mind that whatever the health board decides or decrees, it will require the cooperation of the County Sheriff, County Attorney, possibly the Attorney General and – so long as due process is retained – a jury of one’s peers.