If Idaho Legislature fails to act, judicial action may be needed
Perhaps we all need to study Articles 1, 2, 4 and 10 of the Idaho Constitution. Safety is great, but so is liberty and freedom enshrined in our Constitution. There is much debate and even discontent surrounding Governor Little’s emergency order and with the sheriff’s letter and public comments about that order.
The statutes the Attorney General recently cited as legal justification appear valid on their face, but to me they are very debatable constitutionally, being overly broad and with very little by way of due process in place for effected businesses and citizens. See also Article 1, Section 13 of the Idaho Constitution.
Who or what can limit, constrain or restrict the governor’s powers under hisorder? According to the implementing statute, the Governor may declare that a “disaster emergency” exists by executive order or a proclamation. The declaration continues until the threat has passed, the emergency conditions no longer exist, or until 30 days have passed. The governor may extend the declaration in increments of 30 days until the emergency is resolved. The Legislature may terminate a state of disaster emergency at any time (Idaho Code §46-1008).
That last sentence is exactly what Sheriff Wheeler has proposed. As to the Sheriff’s authority in this matter, Chapter 46-604 pertains: “In case of any breach of the peace, tumult, riot, resistance to process of this state, or a state of extreme emergency, or imminent danger thereof, the sheriff of a county may call for aid upon the commander-in-chief of the national guard.” However, “During the continuance of any state of disaster emergency, the governor is commander-in-chief of the militia and may assume command of all other forces available for emergency duty.” TITLE 46, CHAPTER 10, STATE DISASTER PREPAREDNESS ACT. At the time this was written the applicable Bonner County web pages were unavailable so the author was unable to determine if the Sheriff and or his Department falls under the definition of “all other available forces” or not. In my opinion, it is entirely reasonable and legally imperative for the Sheriff to ask for a review. This is especially true if one considers the totality of the powers now available to the Governor:
In addition to any other powers conferred upon the governor by law, he may:
“(a) Suspend the provisions of any regulations prescribing the procedures for conduct of public business that would in any way prevent, hinder, or delay necessary action in coping with the emergency;
(b) Utilize all resources of the state, including, but not limited to, those sums in the disaster emergency account as he shall deem necessary to pay obligations and expenses incurred during a declared state of disaster emergency;
(c) Transfer the direction, personnel, or functions of state departments and agencies or units thereof for the purpose of performing or facilitating emergency services;
(d) Subject to any applicable requirements for compensation under section 46-1012, Idaho Code, commandeer or utilize any private property, real or personal, if he finds this necessary to cope with the disaster emergency;
(e) Direct and compel the evacuation of all or part of the population from any stricken or threatened area within the state if he deems this action necessary for the preservation of life or other disaster mitigation, response, or recovery;
(f) Prescribe routes, modes of transportation, and destinations in connection with evacuation;
(g) Control ingress and egress to and from a disaster area, the movement of persons within the area, and the occupancy of premises therein;
(h) Suspend or limit the sale, dispensing or transportation of alcoholic beverages, explosives, and combustibles;
(i) Make provision for the availability and use of temporary emergency housing.”
Two other key matters are of grave concern regarding firearms during this State of Emergency.
“During the continuance of any state of disaster emergency, neither the governor nor any agency of any governmental entity or political subdivision of the state shall impose restrictions on the lawful possession, transfer, sale, transport, storage, display or use of firearms or ammunition. (However, in that firearms are considered personal property, one has to ask if subparagraph(d), shown just above, supersedes or negates the provisions of this paragraph?)
I think Sheriff Wheeler is on reasonable ground by, at the very least, questioning the necessity of these emergency orders and requesting legislative oversight. The Governor might be hard-pressed to show, to a reasonable sufficiency, that the current or even foreseeable situation is “likely to be beyond the control of the services, personnel, equipment and facilities of any county, any city, or any city and county,” or that they are” in any real danger of becoming overwhelm[ed].” Arguably, the declaration of a federal - national state of emergency is compelling, it is not however definitive nor is it compulsive.
The implementing paragraphs, of the statute that sets the parameters of an emergency alone is arbitrary and capricious and so ill-defined as to be unconstitutionally overly broad and vague. Whatever the outcome of the sheriff’s request, the laws covering such emergencies deserve a degree of discussion by all of us, especially as we read the enumerated powers it hands to the Governor as listed above.
If nothing else this period is a huge learning experience and I hope many changes will be addressed by the legislature as soon as practical. The declaration is not a Stalinist edict as some exaggerate, nor is it entirely acceptable without questions as others demand. If the Legislature fails to act, it may require the judicial branch to intercede on behalf of the citizens so affected.
STEVE MORGAN
Sandpoint