COVID legal review, Tennessee, Madison County, City of Jackson

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From a legal standpoint, the COVID-19 response has been less than clear from a Constitutional view point. From the “Stay at Home” orders as well as specific professions such as barbers and cosmetologist being physically prevented from earning a living, to mask mandates issued by local authorities, the likelihood that civil liberties guaranteed by the Constitution were lost in the mix is very high.  With that said, surely our government leaders most likely had the best interest of citizens in mind as they tried to navigate uncharted waters involving COVID-19.

There are a few things to consider from a legal standpoint, especially when it comes to long term or sustained suspension of the duly constituted laws of the State of Tennessee.

In the COVID-19 situation, Governor Lee issued Executive Order # 14 as the first one of many in reference to a state of emergency related to the pandemic. In this EO, paragraph 13 references T.C.A. 58-2-107(e)(1) as giving the Governor the authority to proceed with needed emergency suspension of certain Tennessee laws in order to mitigate the effects of the stated emergency on the citizens of Tennessee.

The statute cited in the Governor’s COVID-19 Executive Orders regarding COVID-19 (58-2-107) has some specific information that must be included in the order which is explained under section (c). Governor Lee’s Executive Orders in regards to COVID-19 do not appear to fulfil the statutory requirement found in T.C.A. 58-2-107(c)(3). This potentially could be cause for concern as to how a court would view the validity of the Order and any other Orders to follow which do not contain statutorily obligated information.

The other sections of the Tennessee Code Annotated that are relevant to the local governments COVID-19 response and mandates are found in Title 68 which states the role of the Department of Health on the state and local levels. This section of the law goes back to 1985 with very few updates since.

Legally, the government COVID response is quite confusing when it comes to the actual enforcement of these sections. Title 58 laws, rules, and regulations technically are enforced by the Emergency Management Agency and violations are punishable as Class A misdemeanors. Title 68 laws, rules, and regulations technically are enforced by the Commissioner of the Department of Health or the local County Health officer and violations are punishable as Class B or C misdemeanors depending on who issues the violation.

The State Attorney General gave an opinion on the constitutional muster of mask mandates in the media and stated that he thought the issue would be considered constitutional much like the State’s seatbelt or motorcycle helmet laws are viewed. However, comparing traffic laws to public health mandates is comparing apples to oranges. Operation of a motor vehicle on public roads is considered a privilege and not a right. If someone doesn’t want to wear a seatbelt, they do not have to drive. They can choose to walk, ride a bicycle, horse, or ride with someone else and sit in the back seat. The government issued mask mandate is something totally different. Forcing citizens to wear a face covering in public places and on private property is defiantly constitutionally debatable. The US Attorney William Barr also spoke publically on the topic of government issued COVID mandates recently in a speech at Hillsdale College and he said they were some of the biggest intrusions on American civil liberties in history.

The only way to technically prove or disprove the constitutional validity of any law, executive order, policy, or government procedure is to take it before a judge in the form of a law suit. Taking an issue to court and letting a judge determine whether the government has over stepped the constitution is the only way to keep the government in check.

Please review the Tennessee Code Annotated statues below.

T.C.A. statutes regarding emergencies used by Governor Lee to give authority to Executive Orders relating to COVID-19.

58-2-102. Legislative intent.

58-2-107. Emergency management powers of the governor. (e)(1) / ((c)(3) specific language missing from EO’s).

58-2-119. Enforcement. (Responsibility of EMA)

58-2-120. Penalties. (Class A mis.)

State of TN Commissioner and Dept. of Health T.C.A. statues are in Title 68 of the Tennessee Code Annotated Chapter 1 section.

68-1-203. Violating quarantine a misdemeanor. (Class B mis.)

               ….with the least inconvenience to commerce and travel, prevent the spread of the disease.

Madison County related T.C.A. statutes are in Title 68 of the Tennessee Code Annotated Chapter 2 section.

68-2-601. County board of health — Members — Powers and duties.

               https://www.madisoncountytn.gov/199/Board-of-Health

68-2-602. Violations of rules and regulations of county board — Penalty. (Class C mis.)

68-2-603. Establishment of county health department — County health director — County health officer.

68-2-608. Administrative orders and judicial remedies of county health director. (Actions in Chancery Court)

68-2-609. Orders of county health officer. (Power to quarantine)

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