36-789. Due process for isolation and quarantine during a state of emergency or state of war emergency

A. The department, or local health authority may isolate or quarantine a person or group of persons through a written directive without first obtaining a written order from the court if any delay in the isolation or quarantine of the person would pose an immediate and serious threat to the public health. The directive shall:

1. Specify the identity of the person or persons subject to isolation or quarantine, the premises subject to isolation or quarantine, the date and time at which isolation or quarantine commences, the suspected highly contagious and fatal disease, if known, and that a state of emergency has been declared by the governor.

2. Be given to the person or persons to be isolated or quarantined. If the directive applies to groups of persons and it is impractical to provide individual copies, it may be posted in a conspicuous place in the isolation or quarantine premises.

B. Within ten days after issuing the written directive, or when any delay in the isolation or quarantine of a person or group of persons will not pose an immediate and serious threat to the public health, the department or local health authority shall file a petition for a court order authorizing the initial or continued isolation or quarantine of a person or group of persons. The petition shall specify the following:

1. The identity of the person or group of persons subject to isolation or quarantine.

2. The premises subject to isolation or quarantine.

3. The date and time at which isolation or quarantine commences.

4. The suspected contagious disease, if known.

5. A statement of compliance with the conditions and principles for isolation and quarantine.

6. A statement of the basis on which isolation or quarantine is justified pursuant to this article.

C. The petition must be accompanied by the sworn affidavit of the department or local health authority attesting to the facts asserted in the petition, together with any further information that may be relevant and material to the court s consideration.

D. Notice to a person or group of persons identified in a petition filed pursuant to subsection B of this section must be completed within twenty-four hours after filing the petition and in accordance with the rules of civil procedure.

E. A hearing must be held on a petition filed pursuant to this section within five days after filing of the petition. In extraordinary circumstances and for good cause shown, the department or local health authority may apply to continue the hearing date on a petition for not more than ten days. If the court grants a continuance it must give due regard to the rights of the affected persons, the protection of the public's health, the severity of the emergency and the availability of necessary witnesses and evidence.

F. The court shall grant the petition if, by a preponderance of the evidence, isolation or quarantine is shown to be reasonably necessary to protect the public health.

G. A court order authorizing isolation or quarantine may do so for a period not to exceed thirty days. The order must:

1. Identify the isolated or quarantined person or group of persons by name or shared or similar characteristics or circumstances.

2. Specify factual findings warranting isolation or quarantine pursuant to this article, including any conditions necessary to ensure that isolation or quarantine is carried out within the stated purposes and restrictions of this article.

3. Be served on an affected person or group of persons in accordance with the rules of civil procedure.

H. Before an isolation or quarantine order expires, the department or local health authority may move to continue the isolation or quarantine for an additional period not to exceed thirty days. The court shall grant the motion if, by a preponderance of the evidence, isolation or quarantine is shown to be reasonably necessary to protect the public health.

I. A person or group of persons isolated or quarantined pursuant to this section may apply to the court for an order to show cause why the person or group of persons should not be released. The court must rule on the application to show cause within forty-eight hours after it is filed. If the court grants the application, the court must schedule a hearing on the order to show cause within twenty-four hours after it issues the order to show cause. The issuance of an order to show cause does not stay or enjoin an isolation or quarantine order.

J. A person isolated or quarantined pursuant to this section may request a court hearing regarding the person's treatment and the conditions of the quarantine or isolation.

K. On receiving a request for a hearing pursuant to subsection J of this section, the court must set a date for a hearing. The hearing must take place within ten days after the court receives the request. The request for a hearing does not alter the order of isolation or quarantine. If the court finds that the isolation or quarantine of the person or group of persons does not comply with the requirements of this section or section 36-788, the court may provide remedies appropriate to the circumstances of the state of emergency, the rights of the individual and in keeping with the provisions of this article.

L. A record of the proceedings pursuant to this section shall be made and retained. If, because of a state of emergency or state of war emergency declared pursuant to section 36-787, parties cannot personally appear before the court, the proceedings may be conducted by the authorized representatives of the parties and held by any means that allows all parties to fully participate.

M. The court shall appoint counsel at state expense to represent a person or group of persons who is subject to isolation or quarantine pursuant to this article and who is not otherwise represented by counsel. Representation by appointed counsel continues throughout the duration of the isolation or quarantine of the person or group of persons. The department or local health authority must provide adequate means of communication between the isolated or quarantined persons and their counsel.

N. In any proceedings brought pursuant to this section, to promote the fair and efficient operation of justice and having given due regard to the rights of the affected persons, the protection of the public's health, the severity of the emergency and the availability of necessary witnesses and evidence, the court may order the consolidation of individual claims into groups of claims if:

1. The number of persons involved or to be affected is so large as to render individual participation impractical.

2. There are questions of law or fact common to the individual claims or rights to be determined.

3. The group claims or rights to be determined are typical of the affected person's claims or rights.

4. The entire group will be adequately represented in the consolidation.