With the spread of the Coronavirus Disease 2019 (“COVID-19”), many cities are questioning the local authority they have during a global health emergency. The unprecedented nature of the current situation has left cities navigating in unchartered territory. The North Dakota Supreme Court has examined the power of a township board to adopt quarantine measures to prevent scarlet fever.[I] A century later, cities are facing similar issues related to COVID-19.
In a case from 1914, conflict arose after a man’s family contracted scarlet fever.[II] The man was ordered to quarantine on orders of the township board that occurred over the telephone, rather than at a regular meeting.[III] When the township sought to be reimbursed for the delivery of groceries to him while in quarantine, he refused to pay.[IV] He claimed the quarantine was irregular because it was not established at a regular meeting of the township board.[V] The Court disagreed, reasoning the township board had the discretion to adopt emergency measures to prevent the spread of disease.[VI]
In a recent case, the City of Costa Mesa, California, was informed by federal authorities that cruise ship passengers with COVID-19 would be transferred to an Air Force base in the City.[VII] The City claimed local government leaders and public health officials were not included in a plan to transfer the patients.[VIII] The City maintained the transfer posed a deadly risk to the community and filed an emergency request for a temporary restraining order blocking the transfer.[IX] A federal judge granted the City’s request temporarily blocking the transfer of patients to the local facility.[X] Ultimately, the case was dismissed after federal authorities chose not to use the local facility.
These cases, which were decided more than a century apart, raise questions about the extent of local authority cities can exercise in a global health crisis. In North Dakota, cities are creatures of statute and power and authority is derived from the legislature.[XI] Cities can adopt ordinances, resolutions, and regulations so long as they do not conflict with state or federal law. This includes the ability to make regulations necessary for the public health, safety, and welfare, and for the promotion of health or the suppression of disease.[XII]
At the federal level, the government derives its authority from the Commerce Clause of the U.S. Constitution. Under federal law, the U.S. Secretary of Health and Human Services is authorized to take measures to prevent communicable diseases from foreign countries into the United States and between states.[XIII] These functions have been delegated to the Centers for Disease Control and Prevention.[XIV]
At the state level, North Dakota Governor Doug Burgum declared a state of emergency on March 13, 2020, in response to COVID-19.[XV] This includes, under North Dakota’s Disaster Act of 1985, the power to “utilize all available resources of the state government as reasonably necessary to manage the disaster or emergency and of each political subdivision of the state.”[XVI] Notably, the North Dakota Disaster Act of 1985, defines all activities relating to emergency management as governmental functions. This provides broad immunity to the State and cities who perform functions and activities related to the emergency.[XVII]
While the ability of cities to enact regulations to protect public health, safety, and welfare are founded upon the police power inherent in the State, cities may face obstacles to local action that is opposed to state and federal efforts.[XVIII] In consideration of the emergency powers provided to the State under the North Dakota Disaster Act of 1985, cities should work with state and local departments, and federal authorities to address the effect of COVID-19 on local communities.
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[I] Plymouth Township v. Klug, 26 N.D. 607, 145 N.W. 130 (1914); see also N.D.C.C. § 40-05-10, which states that municipalities shall have the same powers as are conferred upon townships.
[II] Id. at 131.
[VI] Id. at 131-132.
[VII] City of Costa Mesa v. United States, 8:2020-cv-00368 (C.D. Cal. Feb. 28, 2020).
[XI] See N.D.C.C. § 40-01 et seq.
[XII] N.D.C.C. § 40-05-01, subd. 1; and N.D.C.C. § 40-05-01, subd. 45.
[XIII] 42 U.S. Code § 264, section 361.
[XIV] Legal Authorities for Isolation and Quarantine, Centers for Disease Control and Prevention, http://cdc.gov/quarantine/aboutlawsregulationsquarantineisolation.html.
[XV] Executive Order 2020-03.
[XVI] N.D.C.C. § 37-17.1 et seq.
[XVII] N.D.C.C. § 37-17.1-16.
[XVIII] See, e.g., Soderfelt v. City of Drayton, 79 N.D. 742, 752, 59 N.W.2d 502, 507 (1953).