Emergency Powers in Washington State, Post COVID-19

Editor’s note: The original blog was amended to include the case of In the Matter of the Recall of Bird (2023).

During the COVID-19 pandemic local governments operated under a series of emergency orders. These orders drew immediate and long-term legal challenges, some successful, some not. We recently passed the three-year anniversary of Governor Jay Inslee’s first COVID-19 emergency proclamation. With the recent end of the state proclamations and the pending May 11, 2023 end of the federal COVID emergency declarations, now is a good time to look at what happened to these legal challenges, and how (or if) they affected emergency powers.

Governor’s Proclamations

Many of the emergency orders were based on the governor’s authority to issue emergency proclamations under RCW 43.06.220, which has two distinct components: (1) prohibiting activities and (2) waiving or suspending existing statutes.

The governor has sole authority to issue and extend emergency proclamations under the first part of the statute, RCW 43.06.220(1), which includes “[s]uch other activities as he or she reasonably believes should be prohibited to help preserve and maintain life, health, property or the public peace.” The “Stay Home, Stay Healthy” Proclamation 20-25 (March 23, 2020), and subsequent extensions and amendments were issued under RCW 43.06.220(1).

The governor also has the authority to issue emergency proclamations under the second part of the statute, RCW 43.06.220(2), which includes waiving or suspending statutory obligations or limitations. However, these proclamations are limited to 30 days and can only be extended beyond 30 days by concurrent resolution of the legislature or by the legislative leadership (majority and minority leaders of both houses) if the legislature is not in session. An example of this authority is Proclamation 20-34, which temporarily suspended a portion of an existing state statute requiring local governments to file an annual financial report within 150 days of the close of the fiscal year.

An emergency proclamation issued under both subsections may require action from both the governor and the legislature (or its leadership) to extend all provisions of the proclamation beyond 30 days. If the legislature does not agree, the portion of the declaration issued under RCW 43.06.220(2) expires after 30 days while the portion issued under RCW 43.06.220(1) remains in effect until terminated by the governor.

Several specific challenges have been brought before state and federal courts. A water park operator challenged the governor’s and the Washington Department of Labor and Industry’s (DOL) authority to close facilities and limit the number of attendees. Another group brought challenges to the orders regarding attendance limits for religious services and requiring local governments to meet remotely instead of in person. Property owners sued over eviction restrictions. An employer sued in response to emergency health and safety regulations, claiming they were preempted by federal law.

To date, all reported appellate cases have upheld the governor’s authority under this statute. The Washington Supreme Court recently held in a case about the sufficiency of a recall petition that knowingly adopting a resolution that directly conflicted with an emergency order could subject an elected official to a recall vote.

However, at least one case made it clear that this authority must be exercised with regard to due process. In that case DOL sought a court order to enforce its rule prohibiting “dine-in” service at restaurants, but the court found that the department did not comply with court rules related to obtaining restraining orders and so violated the restaurant’s due process rights. But, since the emergency order had expired by the time court could rule on the matter, there was nothing left for the court to do.

The requirement to follow procedural rules is reflected in part in the cases that reached the U.S. Supreme Court. There, the court looked carefully at the specific statutory authority of the agency issuing the order. In a case where the Secretary of Labor (through the Occupational Safety and Health Administration, or OSHA) required vaccinations for companies with more than one hundred employees, the court said that even though OSHA had the power to regulate occupational dangers, Congress had not given that agency the power to regulate public health more broadly.

Health Departments/Directors

Local boards of health and local health officers also have the authority to enact local rules and regulations as are necessary in order to preserve, promote, and improve the public health, and to provide for the control and prevention of any dangerous, contagious, or infectious disease (RCW 70.05.060; RCW 70.05.070). WAC 246-100-070 requires that local law enforcement enforce those orders.

During the pandemic, several lawsuits challenging health department or director’s orders were filed, but none were successful. A Washington State court held that state law allowed the governor to delegate authority to the state Secretary of Health to implement a state-wide masking requirement.

Local Governments

Local governments, including local health departments, cities, counties, and local courts also adopted emergency rules or orders. In all reported cases I found, those orders were also upheld. One example: The City of Seattle adopted restrictions on evictions for non-payment of rent. In one case a federal court dismissed challenges to the restrictions, saying that the plaintiffs did not prove that the state or city restrictions were not appropriate and reasonable ways to advance significant and legitimate goals of preventing disease transmission, housing displacement, and homelessness.

And so far, appellate courts have supported the authority of a judge to best determine how to safely manage their courtroom in the face of a medical emergency. Opinions upheld requirements for jurors to wear face masks during jury selection and other protective measures.

What Does this Mean for Future Emergencies?

For now, nothing much appears to have changed. The courts have generally upheld emergency declarations while clarifying the due process requirements, emphasizing the importance of treating groups that are similarly situated equally, and being certain that the person or agency issuing the order has clear statutory authority to do so. While bills to limit the governor’s authority or to provide for increased legislative oversight were introduced by state lawmakers in the 2023-2024 legislative session (HB 1535, SB 5063), neither made it past the first bill cutoff date.

Caselaw References

For the lawyers (and anyone else who really likes reading this stuff) — Relevant caselaw:

• Dep't of Lab. & Indus. v. Fowler, 23 Wash. App. 2d 509, 534, 516 P.3d 831, 844 (2022), review denied, 523 P.3d 1184 (Wash. 2023)
• El Papel LLC v. Durkan, No. 220CV01323RAJJRC, 2021 WL 4272323, at *1 (W.D. Wash. Sept. 15, 2021), report and recommendation adopted as modified sub nom. EL Papel LLC v. Durkin, No. 20-CV-01323-RAJ, 2022 WL 2828685 (W.D. Wash. July 20, 2022)
• Flower World, Inc. v. Sacks, C.A.9 (Wash.) 43 F.4th 1224 (2022)
• Gonzales v. Inslee, 21 Wash. App. 2d 110, 504 P.3d 890 (2022)
• In the Matter of the Recall of Bird, No. 100976-3, Filed April 27, 2023
• Matter of Recall of Inslee, 199 Wash.2d 416, 508 P.3d 635 (2022)
• Nat'l Fed'n of Indep. Bus. v. Dep't of Lab., Occupational Safety & Health Admin., 211 L. Ed. 2d 448, 142 S. Ct. 661, 666 (2022)
• Sehmel v. Shah, 514 P.3d 1238 (2022)
• Slidewaters LLC v. Washington State Department of Labor and Industries, C.A.9 (Wash.) 2021, 4 F.4th 747, certiorari denied 142 S.Ct. 779, 211 L.Ed.2d 487 (2022)
• State v. Bell, 523 P.3d 847, 856 (Wash. Ct. App. 2023)
• State v. Ferguson, No. 55768-1-II, 2023 WL 2253441 (Wash. Ct. App. Feb. 28, 2023)