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4. Standard of Proof

The deference of courts to public health authority finds further expression in their rulings on the appropriate standard of proof for restricting an individual's liberty.[83] When persons detained under the public health authority petition for habeas corpus relief, the courts use a "reasonable belief"' standard for determining the validity of the detention or testing orders.[84]
Reasonable belief may be based on individual specific information, such as a diagnosis of tuberculosis,[85] which may be obtained through voluntary testing of individuals at risk.[86] In modern public health practice, *345 statutorily required disease reports are the basis of most disease control activities.[87] These statutes require physicians and laboratories to report on persons found to be infected with the disease in question.[88] The disease report then becomes the basis for the reasonable belief that an individual is infected and should be restricted to protect the public health.
The courts will also accept a reasonable belief based on epidemiologic information.[89] Courts have been willing to accept the epidemiologic link between an individual's status, such as being a prostitute,[90] and the probability that the individual will be infected with a communicable disease.[91] The Supreme Court used a similar reasonable-belief analysis in a prevention case[92] involving the release of a successful habeas corpus petitioner: the Court found that the fact that the petitioner had been convicted of a crime (even though the conviction was overturned) weakened petitioner's claim that he had been unjustly detained.[93] The Court's reliance on a conviction as evidence of an increased probability of guilt is an epidemiologic-based finding analogous to a finding that being a prostitute *346 increases a person's probability of being infected with a venereal disease.

[83] In re martin, 83 Cal. App. 2d 164, 167, 188 P.2d 287, 289 (1948), deals with the appropriate standard of proof for instituting quarantine. Petitioners were arrested for vagrancy, then detained on a venereal disease health-hold when they posted bail.
It would seem unnecessary to state that the delegation of such complete authority over one of the most fundamental of our constitutional rights --the right of personal liberty--must of necessity carry with it the obligation to exercise such unusual powers only when, under the facts as brought within the knowledge of the health authorities, "reasonable ground exists to support the belief"' that the person so held is infected. (citation omitted).
[84] Id. at 168-69: "The necessity of proof in cases such as this is analogous to that required on a preliminary examination before a magistrate prior to commitment on a criminal charge, the extent of the inquiry being merely as to the existence of reasonable cause pending opportunity for further investigation or examination."
[85] See In re Halko, 246 Cal.2d 553, 54 Cal. Rptr. 661 (1966); Moore v. Draper, 57 So. 2d 648 (Fla. 1952); Moore v. Armstrong, 149 So. 2d 36 (Fla. 1963).
[86] Ex parte Johnston, 40 Cal. App. 242, 180 P. 644 (1919) (petitioner voluntarily submitted to test for venereal disease, and tested positive; health officer then ordered that petitioner be detained).
[87] [FN87]. See Simonsen v. Swenson, 104 Neb. 224, 228, 177 N.W. 831, 832 (1920):
No patient can expect that if his malady is found to be of a dangerously contagious nature he can still require it to be kept secret from those to whom, if there was no disclosure, such disease would be transmitted. The information given to a physician by his patient, though confidential, must, it seems to us, be given and received subject to the qualification that if the patient's disease is found to be of a dangerous and so highly contagious or infectious a nature that it will necessarily be transmitted to others unless the danger of contagion is disclosed to them, then the physician should, in that event, if no other means of protection is possible, be privileged to make so much of a disclosure to such persons as is necessary to prevent the spread of the disease.
[88] See Jones v. Stanko, 118 Ohio St. 147, 160 N.E. 456 (1928); see also Whalen v. Roe, 429 U.S. 589 (1977), (discussion of the general power to require the reporting of public health and safety related information).
[89] See In re Arata, 52 Cal. App. 380, 198 P. 814 (1921); In re Clemente, 61 Cal. App. 666, 215 P. 698 (1923); Ex parte Company, 106 Ohio 50, 139 N.E. 204 (1922); In re Dayton, 52 Cal. App. 635, 199 P. 548 (1921); Ex parte Kilbane, 32 Ohio St. 530, 530, 67 N.E.2d 22 (1945); Ex parte King, 128 Cal. App. 27, 16 P.2d 694 (1932).
[90] "The demographic factors that correlate best with gonorrhea incidence are age, race, marital status, socioeconomic status and urban residence. Individuals who are single, have a lower socioeconomic status and reside in a large city are more likely to be infected by gonorrhea."' H. W. HETHCOTE AND J.A. YORKE, LECTURE NOTES IN MATHEMATICS: GONORRHEA TRANSMISSION DYNAMICS AND CONTROL (1984) [hereinafter HETHCOTE].
[91] But see Caves v. Hilbert, 92 Okla. Crim. 175, 222 P.2d 169 (Crim. App. 1950) (no cause to arrest a woman and have her tested for venereal disease just because she was in a hotel room with a man, who was not her husband); Ex parte Dillon, 186 P. 170, 49 Cal. App. 239 (1919) (having sex in rooming houses held not to constitute probable cause for venereal disease quarantine).
[92] Hilton v. Braunskill, 107 S.Ct. 2113 (1987). See infra, Part II, Section B, subsection 6.
[93] See infra text accompanying notes 336-37.

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