“FIVE FREEDOMS”: Model Bill 5: No Emergency Law

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– – – Model Bill – – –

 
The State of __________ finds that in certain states of emergency that threaten the life of the people the government must act swiftly and that in all circumstances certain procedures must be followed to assure that fundamental rights are never ignored or suspended.

It is the policy of the State of __________ to protect individual human rights and constitutional liberties even in a public health crisis or other state of emergency.

It is the policy of the State of __________ that the executive, legislative, and judicial branches must always act in a non-discriminatory manner and must meet the requirements of necessity and proportionality even in an public health crisis or other state of emergency to comport with due process of law.

Accordingly, when the government must act swiftly to abate a public health crisis or other emergency, its emergency powers should be time-barred and exercised on a temporary basis only with the aim of restoring a state or normalcy as soon as possible.  The provisions herein are intended to further these policies.

1. State of Emergency Procedures and Provisions.

(a) The governor may declare a state of emergency by executive order in exigent circumstances to protect the public health and safety. Any such executive order must be publicly and officially announced in all languages necessary to fully and fairly inform all members of the public of the state of emergency. If the governor finds that a state of emergency is no longer necessary less than 30 days after the declaration of a state of emergency, the governor must issue an executive order terminating the state of emergency immediately.

(b) The legislature may terminate a state of emergency by a majority vote of each chamber at any time.

(c) All laws and orders enacted on an emergency basis must expire or be subject to renewal no later than 30 days from the promulgation of the law or issuance of the order.

(d) All states of emergency declared by the governor automatically expire after 30 days unless renewed by a majority vote of each chamber of the legislature prior to expiration.  In the event that the legislature is unable to convene prior to the 30-day expiration date, the state of emergency and orders issued pursuant thereto will be extended automatically in 14-day increments or until the legislature is able to convene to vote on a renewal, whichever comes first. Members of the legislature are exempt from emergency orders that interfere with their ability to travel or otherwise execute their legislative duties.

(e) All laws and orders enacted on an emergency basis must not be arbitrary or unreasonable, must be interpreted strictly, and must be clear and accessible to the public.

(f) All laws and orders enacted on an emergency basis must be necessary to protect the public and must be narrowly tailored to meet the public purpose without unnecessarily infringing on individual rights.

(g) All laws and orders enacted on an emergency basis must be proportionate to the interests at stake and must be the least intrusive option to further the purpose of the law or order.

(h) All laws and orders enacted on an emergency basis must not discriminate against any person or class of people where such discrimination would be unlawful in the absence of a state of emergency.

(i) All fines or punishment for noncompliance with any law or order enacted on an emergency basis must be reasonable and proportionate to the seriousness of the offense. Consideration must be given to the totality of the circumstances that led to the noncompliance.

(j) All laws and orders enacted on an emergency basis are subject to judicial review to assure compliance with constitutional and other rights.  Judicial review must not be denied even in a state of emergency. In any challenge to, or legal dispute arising from, any law or order enacted on an emergency basis the governor, legislature, court or other government official or entity responsible for the law or order bears the burden of proof on the legality of the law or order.

(k) All persons who are responsible for violations of others’ rights during a state of emergency may be criminally or civilly punished after the emergency abates, and all statutes of limitation are tolled during the pendency of the state of emergency.

2. Construction and severability. The provisions of this section shall be construed liberally to accomplish the policies expressed herein. The provisions of this section are severable. If any provision of this section or the application thereof is held invalid, the invalidity does not affect other provisions or applications of the section, which remain enforceable.
3. Effective date. This law is effective immediately upon its passage.