3. Review of Public Health Orders
Traditional public health laws do not provide for pre-restriction
hearings to review a health officer's orders.
Instead, review is through post- restriction habeas corpus proceedings.
Although courts have recognized that detention involves grave intrusion into
an individual's expectation *343
the control of communicable disease has been found to outweigh the individual
The authority to detain without judicial process was reviewed
most recently in Reynolds v. McNichols.
Ms. Reynolds, a prostitute, challenged a Denver public health officer's authority
to require her to be examined and treated for venereal disease without a judicial
The court rejected petitioner's
equal protection claim,
declining to apply
strict scrutiny to the ordinance in question.
The court found that both the detention and the walk-in orders
Perhaps the clearest difference between public health
detentions and criminal arrests is that public health detentions are not bailable.
The rationale underlying this rule is that if the person could be relied on
not to spread the disease while out on bail, there would be no need for detention
in the first place.
]. See Ex parte Roman,
199 P. 580, (1921). This case was a test of the legality of the statute allowing
the detention of prisoners suspected of being infected with a communicable disease.
After upholding the state's power to authorize the holding of a potentially
infected prisoner beyond his sentence, the court discussed the review of such
However, if, after such arrest or detention, such person challenges
the right of the authorities to continue the detention, the fundamental law
affords such person the right to have the legality of his or her detention inquired
into by a court of competent jurisdiction in a habeas corpus proceeding. The
law denies to no one restrained of his liberty without a hearing the right to
prove in some tribunal that the facts justifying his restraint do not exist.
See In re Halko, 246 Cal.2d
553, 554, 54 Cal. Rptr. 661, 662 (1966):
Petitioner contends the right of the health officer to issue
consecutive certificates of quarantine and isolation for periods of six months
each, "'without means of questioning and judicially determining"' the conclusion
of the health officer, results in "continually depriving one of his liberty."'
Therefore, section 3285 "is unconstitutional in that it deprives this petitioner
of his liberty without due process of law."
We disagree with the petitioner's interpretation of the law
and his assertion that section 3285 is unconstitutional.
The individual may also
be subjected to an examination for venereal disease during his or her detention.
See People v. Strautz, 386 Ill. 360, 54 N.E.2d 441 (1944).
Id.; Welch v. Shepherd,
165 Kan. 394, 196 P.2d 235 (1948).
488 F.2d 1378 (10th Cir.
The statute defined a
person under suspicion as any person arrested and charged with "vagrancy, prostitution,
rape, a violation of this article, or another offense related to sex."' Id.
at 1384. The ordinance provides that persons who have been arrested may be detained
in jail without bail, pending examination and treatment.
[T]he detention of any person in jail under the provisions hereof
shall continue only for such time as is reasonably necessary to examine such
person and render treatment if such person is found to have a venereal disease
in a communicable form. The provisions hereof shall not be utilized as, nor
construed to be, a penalty or punishment. No person detained for health under
the provisions hereof shall be released from such detention even if he or she
is otherwise eligible for release on bond or by reason of payment of fine, or
termination of sentence imposed.
Id. While vagrancy was not at issue in this case, it would be
expected that vagrancy would only be an acceptable ground for testing and treatment
if it was correlated with communicable disease transmission.
Similarly, the claim that
the ordinance was enforced only against females, and not males, is, under the
circumstances of this case, insufficient to invoke the equal protection provision
of the Fourteenth Amendment. The trial court indicated that it was of the view
that the equal protection argument was not properly within the issues raised
by the pleadings in the case and accordingly did not consider it. In any event,
in our view plaintiff's suggestion that she was unconstitutionally dealt with
by the city authorities is under the circumstances unavailing.
In regard to her equal protection argument, the fact that on
the two occasions when plaintiff was arrested in a hotel room the plaintiff's
customer was not himself arrested and detained for examination is not significant.
From the record before us, there is nothing to indicate that plaintiff did in
fact have sex relations with either of her male companions, though evidence
of solicitation was obvious. Such being the case, there was no reason to examine
plaintiff's male companions.
Id. at 1383.
The court asserted only
that there was no equal protection claim available and, thus, refused to discuss
the level of scrutiny which would be applicable to the case. Id.
Detention could have been
avoided if the prisoner had agreed to accept treatment without further testing.
Moreover, the ordinance empowered the Director of Denver Health and Hospitals
to order persons suspected of carrying a venereal disease, who were not in jail,
to present themselves for examination and treatment. See id. at 1385. The ordinance
also authorized the Denver police to order persons to present themselves at
Denver Health and Hospitals for examination and treatment. Id. at 1386.
for a limited period of time for the purpose of permitting examination and treatment
of a person reasonably suspected of having a venereal disease has been upheld
by numerous state courts, against a wide variety of constitutional challenge,s
as a valid exercise of the police power designed to protect the public health.
Id. at 1382. The Reynolds court held: "'The provisions of the ordinance permitting
limited detention for involuntary examination and treatment of a venereal disease
being in themselves constitutional, the fact that the city provides a less onerous
alternative, which the plaintiff in this case elected to follow, does not violate
any constitutional right of the plaintiff."' Id. at 1383.
"To grant release on bail
to persons isolated and detained on a quarantine order because they have a contagious
disease which makes them dangerous to others, or to the public in general, would
render quarantine laws and regulations nugatory and of no avail."' Varholy v.
Sweat, 153 Fla. 571, 575, 15 So. 2d 267, 270 (1943).
In this matter, public
health cases resemble another police power action where bail is not mandatory,
the regulation of immigration. See Carlson v. Landon, 342 U.S. 524 (1952). Congress
adopted this same rationale in the Bail Reform Act of 1984. In upholding this
law, the Supreme Court adopted a public health rationale for not requiring that
the state prove its case "beyond a reasonable doubt."' U.S. v. Salerno, 631
F.Supp. 1364 (S.D.N.Y. 1988).
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