Public Transit Emergency Preparedness Against Ebola and Other Infectious Diseases: Legal Issues (2017)

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17 powers granted to its governor by its emergency management act “provides another statutory scheme whereby the State may legally commandeer private property for use or to take the same for emergency or disaster response, subject to the right of the owner to be compensated.”143 Although all states are constitutionally obligated to provide due process, some states have chosen to make the state’s obligation statutorily explicit and have included provisions on due process and compensation within the laws related to protecting public health. Illinois, for example, states that “owners of places that are ordered to be closed and made off limits to the public, shall be given a written notice of such order,” to include: “(1) notice of the right to counsel; (2) notice the court will appoint counsel for an indigent person or owner; (3) notice of the reason for the closure; (4) notice of whether the order is an immediate order, and (5) notice of the closure’s anticipated duration.”144 New Hampshire law states that when “The [health] commissioner may also cause any material located within or on the grounds of a building to be decontaminated or destroyed” on grounds of imminent danger to the public health, “[that] destruction […] shall be consid- ered a taking of private property and shall be subject to the compensation provisions.”145 Such provisions balance the need to act for the public health with the interests of private citizens or businesses. IV. FULL OR PARTIAL SUSPENSION OF SERVICE A. Introduction 1. Definition of Full or Partial Suspension of Service As part of their normal operational duties, state transportation and transit agencies possess regula- tory authority to control or suspend transit and transportation for regulatory violations or to protect public safety.146 However, these authorities typically do not specify PHEs such as an IDO. Nonetheless, during a highly infectious or contagious disease outbreak, or in the event of a less acute but wide- spread disease outbreak, suspension of service may become necessary to control an outbreak. Governors or state health officials may consider temporary suspension of transit services, as the proximity of individuals who use transit services could help transmit disease more quickly. Depending on the scope and scale of the outbreak, state officials may decide to partially or completely suspend transit services. Partial suspension of service may target areas of an isolated IDO or areas with high rates of transmission; full suspension of service would close all routes and carriers. Both are rarely done: New York made headlines in January 2015 when Gover- nor Andrew Cuomo shut down the New York City subway for the first time in its 110-year history.147 B. State Powers to Suspend Service Most state laws are written such that state offi- cials—primarily the governor—would have the authority to suspend both government and commer- cial services if necessary to address a PHE, such as an IDO. Though these powers may reside with other officials, successful implementation will require coor- dination with state and local transit authorities. 1. Governors’ Powers Many state laws provide governors with broad authority to respond to a public emergency in any way that is designed to address the emergency. These laws, which often cover numerous traffic- and transit-related measures, could reasonably extend to suspension of transit services. For example, in Florida, the governor may “take measures concern- ing the conduct of civilians, the movement and cessation of movement of pedestrian and vehicular traffic prior to, during, and subsequent to […] actual or threatened emergencies.”148 Oregon’s governor may “prescribe modes of transportation, routes and destinations required for the evacuation of individu- als or the provision of emergency services,” as well as “control or limit entry into, exit from, movement within and the occupancy of premises in any public area subject to or threatened by a public health emergency,” or “take any other action that may be necessary for the management of resources, or to protect the public during a public health emer- gency.”149 Similarly, Pennsylvania’s governor may “control ingress and egress to and from a disaster 143 La Bruzzo v. State of Louisiana, 165 So.3d 166 (2014). 144 20 ILL. cOmP. sTaT. 2305/2 (2016). 145 N.H. rev. sTaT. ann. § 141-C:16-a (2016). Similarly, Colorado states that “compensation for property shall be made only if the property was commandeered or other- wise used in coping with an emergency epidemic” and that “[t]he amount of compensation shall be calculated in the same manner as compensation due for taking of property pursuant to eminent domain procedures….” cO. rev. sTaT. ann. § 24-33.5-711.5 (2016). 146 See, e.g., N.M. sTaT. ann. § 65-2A-27 (2016). 147 Matt Flegenheimer, Leaders in New York and New Jersey Defend Shutdown for Blizzard that Wasn’t, N.Y. TImes, Jan. 27, 2015, at A1. The decision also highlights the difficulty of the process and the importance of com- munication. The Mayor of New York City learned the governor was closing the subway at the same time as the public. Id. 148 fLa. sTaT. ann. § 252.36 (2016). 149 Or. rev. sTaT. § 433.441 (2016).

18 area, the movement of persons within the area and the occupancy of premises therein.”150 Other states provide more explicitly for the gover- nor’s ability to control transit during a declared state of emergency. Missouri states that the gover- nor has the power to “seize, take or requisition to the extent necessary […] any means of transportation, other than railroads and railroad equipment and fuel, and all fuel necessary.”151 This could likely be used to suspend transit services. South Carolina, however, makes this ability explicit. Indeed, South Carolina’s governor may “order the discontinuance of any transportation or other public facilities, or, in the alternative, direct that such facilities be oper- ated by a State agency.”152 Finally, a few states grant governors powers that do not specify transportation, but could likely be used to suspend transit services. In Maryland, the governor has the power to “proclaim a day for the general cessation of business” in a county or munici- pal corporation if an emergency exists.153 “Business” could include transportation services. Hawaii’s governor, during a declared emergency, may “shut off water mains, gas mains, electric power connec- tions, or suspend other services.”154 Though this section of the statute primarily addresses utilities, elsewhere the governor is charged with “assuring the continuity of service by critical infrastructure facilities, both publicly and privately owned,”155 which could extend to transit services. It is important to note that in addition to suspend- ing services, such as rail or bus routes, a governor is usually empowered during a declared state of emer- gency to suspend any rules and regulations that hinder response efforts, including those that apply to transit. This could include, for example, temporarily suspending weight restrictions on roads and maxi- mum carrying capacity for certain vehicles.156 North Dakota’s statute is more specific than most, noting that, in emergencies of national defense, the governor may “suspend or modify the enforcement of any stat- ute, ordinance, or regulation relating to the operation of motor vehicles upon the highways and streets of the state where it appears that the enforcement […] would impede or interfere” with the defense.157 Although almost no state specifically grants the governor the power to suspend transit services, the statutes discussed provide avenues to suspend services if such action is necessary to address a declared emergency or IDO. 2. State Transit Authorities or Transportation Departments As part of their regulatory authority, many state transportation departments or commissions already possess the power to suspend services if a carrier has a safety or regulatory violation that “endangers the public health or safety.”158 The State of New York, for example, states that whenever the [transportation] commissioner determines that the operations of a motor carrier of passengers pose a danger to public safety or the welfare of the people of the State of New York, the commissioner may serve such motor carrier with a notice or order requiring certain action or the cessation of certain activities immediately or within a specified period.159 The authority to suspend services for a PHE, such as an IDO, generally rests with governors. However, if suspension of services occurs during emergencies, transit departments will likely be engaged in an advisory capacity or asked to carry out orders. For example, in South Carolina, a state agency may be ordered to operate a transportation or other public facility if necessary to address an emergency or PHE.160 Although typical safety violation suspen- sion protocols do not contemplate an IDO, the ability and protocols to suspend carriers will play an impor- tant role if transit officials are asked to help. C. Additional Legal Issues 1. Suspension of Service and Public Employees Suspension of service raises a number of concerns. Employees who do not report for duty may not get 150 35 Pa. sTaT. and cOns. sTaT. ann. § 7301 (2016). See also aLasKa sTaT. ann. § 18.15.390 (2016) (stating the governor may “(1) close, direct, and compel the evacua- tion of, or decontaminate or cause to be decontaminated, any facility if there is reasonable cause to believe that the facility may endanger the public health.”). 151 mO. ann. sTaT. § 44.100 (2016). 152 S.C. cOde ann. § 1-3-440 (2016). 153 md. cOde ann., Pub. safeTy, § 14-307 (2016). See also haw. rev. sTaT. § 127A-13(b)(18) (stating in a declared emergency the governor may “fix or revise the hours of government business”). 154 haw. rev. sTaT. § 127A-13(a)(5). 155 haw. rev. sTaT. § 127A-13 (a)(10). Similar to South Carolina, the governor may do so by “regulating or, if nec- essary to the continuation of the service thereof, by taking over and operating the same.” Id. 156 N.D. cenT. cOde § 54-07-01.1 (2016). 157 N.D. cenT. cOde § 54-07-01.1 (2016). See, e.g., State of New York, Department of Transportation, Case 27647, Governor’s Emergency Declaration No. 137 (Nov. 19, 2014) (ordering the suspension of specific carrier and vehicle regulations in order to effectively respond to a snowstorm). 158 N.M. sTaT. ann. § 65-2A-27 (2016). See also neb. rev. sTaT. § 75-115 (stating that the transportation commis- sion “shall have the power to examine and inspect” motor carriers and common carriers “with regard to the public safety” and “enjoin and prevent [carriers] from operating” while in an “unsafe and dangerous condition”). 159 N.Y. cOmP. cOdes r. & regs. tit. 17 § 720.32 (2016). 160 S.C. cOde ann. § 1-3-440 (2016).

19 paid. An additional concern, however, may be that state employees are asked to fill other roles. In addi- tion to regular job duties—or in place of regular job duties—many states allow governors to have state employees take on additional or alternate duties to assist in responding to an emergency, if needed. For example, in Louisiana, during a declared emergency, the governor may “transfer the direction, personnel, or functions of state departments and agencies or units thereof for the purpose of performing or facili- tating emergency services.”161 Hawaii goes further and allows its governor comprehensively to order and direct government agencies, officials, officers, and employees of the State, to take such action and employ such measures for law enforcement, medical, health, firefighting, traffic control, warnings and signals, engineering, rescue, construction, emergency housing, other welfare, hospital- ization, transportation, water supply, public information, training, and other emergency functions as may be neces- sary, and utilize the services, materials, and facilities of the agencies and officers. All such agencies and officers shall cooperate with and extend their services, materials, and facilities to the governor as the governor may request.162 Finally, most states include an enforcement mechanism to ensure the cooperation of agencies, if necessary. For example, not only can the South Caro- lina governor order the suspension of service, the governor may also “authorize, order or direct any State, county or city official to enforce the provisions of [the emergency] proclamation.”163 2. The Need for Policies and Procedures that Respect Civil Liberties As written, many state laws do not distinguish between public and private property regarding the state’s authority to suspend service. States view the scope of this authority as appropriate when it pertains to containing a public health threat such as an IDO. Any government taking of private property, however, triggers constitutional concerns because the Fifth and Fourteenth Amendments may be implicated.164 Suspension of service of a private carrier could raise such questions. However, almost all states have included explicit provisions for compensation if property is taken or used during a declared emergency. For example, Oregon law simply states that “when real or personal property is taken […] the owner of the property shall be entitled to reasonable compensation from the state.”165 Mississippi explicitly requires that private property owners must be compensated for any government use of their property. Although the governor may have the power to commandeer or utilize private property to cope with a disaster or emergency, such actions are only allowable “provided that such private property so commandeered or utilized shall be paid for under terms and conditions agreed upon by the participating parties.”166 Although some states are explicit about monetary compensation, other states will provide for a process or hearing when government chooses to take control over private property. New York, for example, requires that a motor carrier be provided with a “notice or order requiring certain action or the cessation of certain activities immediately or within a specified period, and the [transportation] commissioner shall provide such motor carrier with an opportunity to be heard within a period specified in such notice or order.”167 Such provi- sions likely provide due process protections for private entities during a declared emergency or IDO. 3. Case Study: The 2015 Middle Eastern Respiratory Syndrome Outbreak in South Korea In 2012, public health authorities in Saudi Arabia identified MERS-CoV, a coronavirus that causes some of its victims to develop Middle Eastern Respiratory Syndrome (MERS).168 MERS is a respiratory disease that can cause coughing, shortness of breath, or fever; in severe cases, MERS causes respiratory failure and death.169 MERS-CoV is spread through close contact. People who care for or live with a person who has been infected are susceptible to being infected them- selves.170 Although the coronavirus originated in the Middle East, it was first identified in a South Korean patient on May 26, 2015.171 Between May 26 and July 7, South Korea reported 186 cases of MERS. Thirty- six of those patients died of the disease.172 161 La. rev. cOde ann. 29:724 (c) (3) (2016); 20 ILL. cOmP. sTaT. ann. 3305/7(a)(3) (2016) (The governor may “transfer the direction, personnel or functions of State departments and agencies or units thereof for the purpose of performing or facilitating disaster response and recovery programs.”). 162 haw. rev. sTaT. § 127A-12 (2016). 163 S.C. cOde ann. § 1-3-440 (2016). 164 U.S. cOnsT. amend. V & amend. XIV. These Amend- ments guarantee that neither the federal government nor state governments may deprive citizens of “life, liberty, or property without due process of law.” 165 Or. rev. sTaT. § 433.441 (2016). 166 mIss. cOde ann. § 33-15-11 (2016). 167 N.Y. cOmP. cOdes r. & regs. tit. 17 § 720.32 (2016). 168 wOrLd heaLTh OrganIzaTIOn Fact Sheet, Middle East Respiratory Syndrome Coronavirus (MERS-CoV), (June 2015), (last accessed Sept. 16, 2016), www.who.int/ mediacentre/factsheets/mers-cov/en/. 169 Id. 170 Madison Park, South Korea grapples to contain MERS as 1,369 in quarantine, CNN.COM, (updated June 4, 2015), www.cnn.com/2015/06/03/world/south-korea-mers/. 171 South Korea Declares ‘de facto end’ to MERS Virus, bbc news, (July 28, 2015), www.bbc.com/news/world- asia-33684981. 172 Id.