COVID-19 has caused many governors (including Washington’s) to issue “stay in place” orders. Have we been deprived of our Constitutional right to liberty without due process of law? The answer is almost certainly “no”.
The Constitutions of the U.S.A. and Washington State guarantee protection of our rights to life, liberty, and property unless brought about by “due process of law”.
RCW 43.06.010(12) provides the following:
“[t]he governor may, after finding that a public disorder, disaster, energy emergency, or riot exists within this state or any part thereof which affects life, health, property, or the public peace, proclaim a state of emergency in the area affected, and the powers granted the governor during a state of emergency shall be effective only within the area described in the proclamation….”
Further, RCW 43.06.220 provides, in pertinent part, the following:
(1) The governor after proclaiming a state of emergency and prior to terminating such, may, in the area described by the proclamation issue an order prohibiting:
(a) Any person being on the public streets, or in the public parks, or at any other public place during the hours declared by the governor to be a period of curfew;
(b) Any number of persons, as designated by the governor, from assembling or gathering on the public streets, parks, or other open areas of this state, either public or private; ….
The deprivation of Constitutional rights without due process of law can give rise to lawsuits alleging wrongdoing proximately causing damages. Pursuant to RCW 4.92.090, the State is liable for tortious conduct to the same extent as private individuals, but truly discretionary governmental acts on an executive level cannot be characterized as tortious and thus cannot be cognizable under the statute. Evangelical United Brethren Church v. State, 67 Wn.2d 246, 253-55, 407 P.2d 440 (1965); Cougar Bus. Owners Asso v. State, 97 Wn.2d 466, 647 P.2d 481 (1982).
The Cougar Business Owners case
Cougar Business Owners Asso. Is an interesting case. There, the eruption of Mt. St. Helens prompted the governor to issue an executive order requiring evacuation from the “red zone” around the volcano. A group of enterprising business owners in the town of Cougar brought suit against the State of Washington, Governor Ray and two unnamed individuals based upon the state of emergency declared in April 1980 due to the volcanic activity of Mount St. Helens. Appellants allege damages caused by the Governor's declaring the emergency too soon, including Cougar in the restricted "red zone", and failing to remove Cougar from that zone soon enough. The trial court dismissed the complaint on summary judgment and the Washington State Supreme Court affirmed.
The reasoning included consideration of a 4-part test for determining whether an action is truly discretionary:
(1) Does the challenged act . . . necessarily involve a basic governmental policy, program, or objective? (2) Is the questioned act . . . essential to the realization or accomplishment of that policy, program, or objective . . .? (3) Does the act . . . require the exercise of basic policy evaluation, judgment, and expertise . . .? (4) Does the governmental agency involved possess the requisite constitutional, [or] statutory . . . authority . . . to do or make the challenged act . . .?
Evangelical, at 255. If all four questions can be clearly and unequivocally answered in the affirmative, then the act or decision can be classified as a discretionary governmental function and non-tortious.
In the COVID-19 scenario, any court would undoubtedly find in favor of the government because of the following:
(1) the government has a fundamental policy and objective to preserve and protect the public health and executive “stay in place” orders support their policies and objectives;
(2) “stay in place” orders have appeared to be essential to the realization or accomplishment of the aforementioned policies and objectives;
(3) the issuance of “stay in place” orders must have required the exercise of basic policy evaluation, judgment, and expertise;
(4) there is statutory authority for the governor….
It therefore appears that suing the government because you don’t like the orders to stay home would not be a profitable or economically feasible action.
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