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Working Draft - Link to Habeas Corpus
Safeguarding Both Public Health and Safety

and

Personal Liberty

Through

the "Great and Celebrated" Writ of Habeas Corpus ad subjiciendum

Among all the objects sought to be secured by governmental laws none is more important than the preservation of public health. The duty to preserve the public health finds ample support in the police power, which is inherent in the state, and which the state cannot surrender. . . . The constitutional guaranties that no person shall be deprived of life, liberty, or property without due process of law, and that no state shall deny to any person within its jurisdiction equal protection of the laws, were not intended to limit the subjects upon which the police power of a state may lawfully be asserted in this any more than in any other connection .[citations omitted] . . . It has almost universally been held in this country that constitutional guaranties must yield to the enforcement of the statutes and ordinances designed to promote the public health as a part of the police powers of the State [citations omitted].

People ex rel. Baker v. Strautz, 54 N.E.2d 441, 444 (Ill. 1944), quoting People ex rel. Barmore v. Robertson, 302 Ill. 422, 427; 134 N.E. 815, 817 (Ill. 1922)

There has always been a certain tension between the concepts of "order" and "liberty;" between "security" and "freedom." In fact, some would argue that the tension between them is best seen today in the public health field in light of bioterrorism concerns. However, a longer view reveals that the supposed sharper tensions of today are, in fact, only an echo of battles fought - and resolved - long ago. Adequate safeguards for protecting both the public health and individual liberty have been available from the beginning of the common law and are still fully functional to this day. Chief among them is the writ of habeas corpus ad subjiciendum, a product of almost 800 years of common law development.

The writ of habeas corpus has been called the "Great Writ" since it is the most fundamental device we have to protect ourselves from arbitrary arrest or continued confinement without just cause.[1] Its exact origin is unknown. The oldest documented use dates from 1220 AD when the phrase "habeas corpora" (roughly, "produce all the bodies") appeared in a court order.[2] It directed an English sheriff to bring all the parties in a trespass case to the Court of Common Pleas.[3] Several specific types of habeas corpus writs developed over hundreds of years, mostly for routine matters in criminal cases. Typical examples were bringing a prisoner to court to testify or transferring a prisoner to the correct court. However, these types of habeas corpus writs did not challenge keeping the prisoner in custody. The primary writ for the protection of freedom became the habeas corpus ad subjiciendum. The modern form of the writ arose in response to the royalist abuses of Charles I of England between 1627 and 1640.[4] In essence, he had been arresting people without charging them with any crime. Instead, he held wealthy men until they agreed to loan his government money at below market rates.[5] Others were held, without charge or trial, simply for displeasing the king or his officers.[6]

The writ of habeas corpus ad subjiciendum commands persons holding a prisoner (criminal cases) or confining a person (civil or administrative cases) to bring the detained person into court and explain by what right they are keeping the person. Paraphrasing Justice Story, it is a great bulwark of personal liberty because it determines whether any person is rightfully confined or not. If the holder cannot give sufficient reason to continue the denial of liberty, the confined person is entitled to immediate release. The writ applies to every type of illegal restraint, whatever it may be.[7] As observed almost 100 years ago, a "writ of habeas corpus is a writ of right and is never to be denied in any case where the liberty of the subject is made the subject of inquiry. But it has always been held that a return showing a legal cause for the detention of a petitioner is enough to suspend the operation of the writ."[8]

The drafters of our national Constitution fully intended to incorporate the English common law experience into the new American state.[9] As Justice Story noted, the English Habeas Corpus Act (31 Car. 2, c. 2) "has been, in substance, incorporated into the jurisprudence of every state in the Union; and the right to it has been secured in most, if not in all, of the state constitutions by a provision, similar to that existing in the constitution of the United States."[10] He was referring to Article 1, Section 9, Clause 2, which reads in the original, "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."[11]

State Constitutions vary somewhat from the national model, usually being more strict. The current Louisiana Constitution flatly says "habeas corpus will not be suspended," with no qualifiers.[12] Both the Louisiana Criminal Code (Article 351) and the Code of Civil Procedure (Article 3821) define the writ as "commanding a person who has another in his custody to produce him before the court and to state the authority for the custody."[13] The Civil Procedure Code's Article 3821 adds, the text "Custody, as used in this Chapter, includes detention and confinement" and "[a] petition for a writ of habeas corpus may be filed by the person in custody or by any other person in his behalf."[14] Arizona's Article 2, Section 14, also omits any qualifier: "The privilege of the writ of habeas corpus shall not be suspended by the authorities of the state."[15] Oklahoma's Article 2, Section 10 matches Arizona and Louisiana: "The privilege of the writ of habeas corpus shall never be suspended by the authorities of this State."[16]

By contrast, the Kansas Constitution (Section 8, Bill of Rights) is a virtual copy of the U.S. Constitution: "The right to the writ of habeas corpus shall not be suspended, unless the public safety requires it in case of invasion or rebellion."[17] Maine follows suit; "the privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it."[18] (So also Nevada and California). Some states have moved from the federal model to the "no qualifier" version. Alabama's 1868 Constitution (Article I, Section 19) echoed the U.S. Constitution; "[th]e privilege of writ of habeas corpus shall not be suspended, except when necessary for public safety in times of rebellion or invasion."[19] But, the 1901 Alabama Constitution anticipated Louisiana by 74 years: "[t]hat the privilege of the writ of habeas corpus shall not be suspended by the authorities of this state."[20]

A reasonable person would surely predict that the case law, even from many jurisdictions, interpreting such similar language would yield similar outcomes. That has precisely been the results of habeas corpus petitions in the public health arena for nearly 100 years. Grounded in the police power, and mindful of the key distinctions between civil confinement, criminal prosecutions, and public health, courts all over the United States have weighed the competing claims of "order" and "liberty" as America transitioned from a largely rural society, through industrialization, and into the information age.

A typical case from early in the last century is Jennie Barmore's difficulties in managing her boarding house in Chicago in 1921. When the city's Board of Health discovered (through disease contact tracing) that she was a typhoid fever carrier, she was placed into quarantine and "a large placard" was placed in her boarding house to warn any person entering the house.[21] She applied for a writ of habeas corpus, maintaining that she had been "unlawfully restrained of her liberty at her home . . . ."[22] The essence of why the Board of Health had to win this suit is this part of the opinion:

The necessity of delegating to an administrative body the power to determine what is a contagious and infectious disease and giving the body authority to take necessary steps to restrict and suppress such disease is apparent to everyone who has followed recent events . . . [t]here is probably not a legislature in the country that would have named the deadly Spanish influenza as a contagious and infectious disease prior to the epidemic of that disease that took a greater toll of lives throughout the country than any other epidemic known in this country. In emergencies of this character it is indispensable to the preservation of public health that some administrative body should be clothed with authority to make adequate rules which have the force of law and to put these rules and regulations into effect promptly. Under these general powers the State department of health has authority to isolate persons who are throwing off disease germs and are thereby endangering the public health.[23]

Once the health department showed that it was acting within the scope of its regulations, that those regulations flowed from either the general police power or from proper state and local laws, and that Ms. Barmore met the quarantine criteria, the case was over. The writ was denied and she was remanded to the custody of the health department.[24]

The foundations of public health law remain unchanged more than 80 years later. In 1992, exactly 70 years after Barmore, the Illinois Supreme Court again considered - and again rejected - essentially the identical challenges to quarantine and mandatory medical testing raised way back in 1922. Henrietta Adams and Peggy Madison had been convicted of prostitution.[25] Under state law, HIV-AIDS testing is mandatory upon such a conviction.[26] But, rather suit than submit to the test, Adams and Madison claimed the law violated a myriad of their rights under both the Illinois and U.S. constitutions: "privacy, freedom from unreasonable searches and seizures, equal protection of the laws, [and also from] . . . cruel and unusual punishment."[27]

Note that the principle disputed in Barmore and Adams survived substantial factual differences. Barmore was employed in a legal business; Adams and Madison were not. Barmore had a civil problem; Adams and Madison began as criminal defendants. Barmore lost her case at every level; Adams and Madison reached the Supreme Court because a lower court had found the law unconstitutional. Ultimately, the principles of public health law did not change between 1922 and 1992 - the testing laws were upheld both times.

Notice also that neither Barmore, nor Adams, nor Madison sought bail, nor did these various health departments ever offer any of the three bail. As observed in Varholy, "[t]o 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."[28]

Something, however, did change - the "provider corporate culture" of many in the public health field shifted from "disease prevention" to what might be best described as a "misplaced zeal for civil rights." Three witnesses testified against the law in 1992; "the chair of the Governor's Task Force on Aids, . . . the director of the AIDS program at Genesis House, a social services agency that works with women in prostitution, and . . . the medical director [of a company providing] medical services to the Cook County Department of Corrections."[29] Despite these witnesses and their changed mindset from that of earlier colleagues, Adams reversed the trial court and upheld the law. Why? Several reasons:

The law "is a public health measure and thus involves a field in which the States exercise broad regulatory and administrative . . . power. . . . States have broad discretion in the formulation of measures designed to protect and promote public health [meaning the police powers dating from Colonial times]."[30]

"[T]he challenged statute concerns matters lying at the heart of the State's police power. There are few, if any, interests more essential to a stable society than the health and safety of its members. Toward that end, the State has a compelling interest in protecting and promoting public health and, here, in adopting measures reasonably designed to prevent the spread of AIDS."[31]

" '[F]or purposes of Fourth Amendment analysis, the choice among such reasonable alternatives remains with the governmental officials who have a unique understanding of, and a responsibility for, limited public resources.' Thus, the issue before us is not whether the State has chosen what all or even most experts would consider to be the best or most effective means of combating the disease, but whether the means chosen by the State can withstand constitutional scrutiny."[32]

 The Illinois Supreme Court thus saw in Adams at least as classic a public health law matter (firmly rooted in almost three centuries of consistent practice) as had the justices in Barmore. However, Adams also spotted the "administrative law" nature of the case. A legislature had to balance risks against a limited budget while it weighed various options. Once charged with carrying out a state mandated program, the local health agency had to also balance risk, effectiveness, and budget. Moreover, the agency had to protect the public health while it respected legitimate privacy and liberty concerns.[33]

So, now that basic principles of public health law and police powers are known to still be solid, what should a local health department or a city/county attorney do? What is the best way to balance public protection with private rights? The most appropriate answer is to use administrative hearings rather than judicial hearings to review quarantines, disease testing, and other routine public health orders.

Why? Again, there are several reasons:

1. The state legislatures have probably set up these sorts of routine health actions as being beyond the scope of ordinary judicial review. For example, one of the early foundation cases, State ex rel. McBride v. Superior Court for King County, reasoned that "the courts have not been inclined to go beyond the query whether the subject-matter of the act is within the range of [an agency's] authority, and having so determined they will not revise, correct, or nullify the methods and means employed to accomplish the purpose of the law."[34] That court thus concluded that "where the police power is set in motion in its proper sphere, the courts have no jurisdiction to stay the arm of the legislative branch of the government, for it is operating in its own particular field, where even the courts are powerless to insist upon a procedure consistent with the forms of the common law."[35] Hence, absent an express judicial appeal provision, a detained person must go through an agency review or appeal before attempting any habeas corpus review by the courts.[36] Obviously, the agency's first review creates a factual record allowing the courts to perform a quick and efficient judicial review.

2. The local or state agency can promulgate regulations requiring persons who wish to contest an isolation order to petition the decision maker doing the reviews. This petition could be to a health agency staff member or an appointed board. The health agency would present the basic information, and the petitioner could supply additional information in writing. Telephone interviews could be used to allow personal statements without the danger of contagion from the in-person testimony of a suspected disease carrier. The decision maker would then make a brief, written ruling, which could be based on predefined classifications. [37] This ruling could be reviewed by an agency appeals board and would greatly simplify any subsequent appeal to the courts. If such a process is adopted, the statutory language to implement these reviews should be kept general to allow flexibility in the face of different epidemic conditions.[38]

3. An agency review process, prior to any judicial activity, has the added benefit of preventing a detained person from "falling through the cracks." [39] Every process needs some type of quality assurance loop or error protection device; isolation and quarantine orders are no exceptions. A key part of the isolation and quarantine process (for any disease) must be thorough recordkeeping of all orders, whom such orders apply to, their duration, and the disease outcome in each case. There should be administrative oversight to ensure that the orders are proper and that other necessary actions are carried out, such as providing food and medical services to restricted persons.

Would an increased reliance upon administrative hearings, rather than a more formal judicial hearing process, undercut legitimate civil liberties? Could these administrative actions evade the key protection of habeas corpus? Both historical and recent Supreme Courts cases strongly indicate no government action is likely to successfully thwart a well founded habeas motion in any circumstance short of the total collapse, or the near total collapse, of civil society. (Of course, in those circumstances, both "writs" and "law" have - by definition - already ceased to exist.). Consider the bedrock paradigm habeas cases, Ex parte Milligan and Ex parte Quirin, in light of one of the latest habeas cases, Hamdi v. Rumsfeld:[40]

Milligan had been an Indiana resident for some 20 years prior the outbreak of the Civil War. In late 1864 he was arrested for various alleged acts of rebellion and aiding the Confederacy, being tried, convicted, and sentenced to death by a military tribunal in May, 1865.[41] Ten days before Milligan was to be hanged, he filed a writ of habeas corpus, seeking release from military custody.[42] Almost a year later, well after the war had ended, the Supreme Court ruled, over four dissents, that the military had no right to hold or try Milligan unless and except "in foreign invasion or civil war, the courts are actually closed, and it is impossible to administer criminal justice according to law, then, on the theatre [sic] of active military operations, where war really prevails," martial law shall prevail.[43]

Quirin, a German citizen, was one of eight Nazi saboteurs held and later tried by a military tribunal as an unlawful belligerent in 1942. [44] For our purposes, the primary lesson of the case is that functioning civil courts are not always sufficient grounds for granting a habeas writ. Quirin distinguished Milligan by noting that all eight of the defendants met unlawful combatant criteria.[45] Nonetheless, the court did not hold that civil courts were forever foreclosed from considering trials by the military under all other circumstances. It reserved that question for another day. [46]

Hamdi, an undisputed American citizen, was captured overseas and declared to be an "enemy combatant."[47] A 6-3 plurality decision (two Justices concurred in the result), found clear legislative authority to detain him "once it is sufficiently clear that [he] is, in fact, an enemy combatant . . . ."[48] Of course the real legal issue is what process is due; who must make what showing to whom to detain a person? The divided Hamdi Court rejected both Hamdi's "full-fledged judicial hearing" approach and the government's "great deference owed to the Executive Branch" position. Instead, the court held that "a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government's factual assertions before a neutral decisionmaker."[49]

Taken together, what do these three cases tell us is required in a habeas matter, and from whom is it due? Perhaps the best summary is Hamdi's strong reliance upon - and its explicit endorsement of - the three part balancing test from Matthews v. Eldridge.[50] In essence, a Matthews test first considers "the private interest that will be affected by the official action," then the Government's "asserted interest" (and also the burden from providing greater amounts of process), and finally assesses the "probable value, if any, of additional or substitute safeguards."[51] As both Mathews and Heckler indicated, the "neutral decisionmaker" required by Hamdi need not be an Article III judge. As Hamdi itself observed, even in a wartime environment, or in a "terror" quasi-wartime situation, "the standards we have articulated could be met by an appropriately authorized and properly constituted military tribunal."[52] The fatal constitutional defect would be adjudicators "disqualified by their interest in the controversy to be decided . . . ."[53] In the public health context, the director of a resident mental health facility whose funding is determined by the number of residents housed each night has an obvious conflict of interest ruling upon a habeas-type release motion made by a patient seeking release.

Once an appropriate neutral decisionmaker has been located, what standards shall control the evidence presented to that decisionmaker? Who will have the burden of proof, and under what conditions could that burden shift? At best, Hamdi provides a limited signpost for both military matters and public health cases. "Any process in which the [detaining person's] factual assertions go wholly unchallenged or are simply presumed correct without any opportunity for the [detained person] to demonstrate otherwise falls constitutionally short."[54] Thus, there must be at least some opportunity for questions and rebuttal by the detained person. However, the Hamdi court was only clear that the detaining person's evidence burden must be greater than "some evidence."[55] While "some evidence" can support denial of a habeas writ, "some evidence" will suffice only when there is "an administrative record developed after an adversarial proceeding . . . ."[56] Hamdi is simply silent on what "enough" evidence looks like, as well as what is "too much" hearsay.[57]

So, focusing on public health matters, what must an administrative hearing entail to satisfy both due process requirements and withstand a habeas corpus challenge?[58] At a minimum, the process must:

Notify the detained person of the reason why he or she is being detained and the authority under which the detaining person is acting;

Provide the detained person a reasonable opportunity at a reasonable time to challenge the factual basis for the detention as well as to introduce evidence supporting release from detention; and,

Afford the detained person a neutral decisionmaker who has no interest in the outcome of the matter.

Even in a routine, peacetime health detention, providing these minimum essentials would have been sufficient for a court to uphold administrative detentions such as Jennie Barmore and Henrietta Adams faced in Illinois in 1922 and 1992. Comparing Barmore and Adams with Hamdi shows that the detained women received every protection required by Hamdi, plus a great many more. For our purposes, the key focus is not "How little may a health department get by with?" but rather "Can the required rights and protections be delivered as well by an administrative process in lieu of a full judicial proceeding?" I/we (???) believe the answer is an unqualified, "Yes."

How would this administrative review work in practice? Florida's Baker Act, although designed for mental health treatment (voluntary as well as involuntary), can serve as a model illustration of how to achieve due process within an administrative context.[59] The controlling state agency for mental health, the Department of Children and Family Services, has developed a set of standard forms for use by all mental health facilities in the state.[60] Careful review of the notifications and rights explained in these forms reveals that every due process requirement called out or discussed in Barmore, Adams, and Hamdi is made available to detained persons. To illustrate:

"Rights of Patients," Form CF-MH 3103, pages 72 through 75 of the 146 page state standard form assembly, explains habeas corpus as follows:

You or your representative have the right to ask the Court to review the cause and legality of your detention in this facility or if you believe you have been unjustly denied a legal right or privilege or an authorized procedure is being bused. A petition form will be given to you by staff upon your request. If you wish to file a habeas corpus petition, you can submit it to a facility staff member, and it will be filed with the court for you by the facility no later than the next court working day.[61]

Notice of Right to Petition for Writ of Habeas Corpus or for Redress of Grievances, Form CF-MH 3036, page 28 of the assembly, not only explains the procedure, but also mandates copies be given to such outside personnel as guardians and representatives. The "Notice of Right" form fulfills all the Rights of Patients described above.

Petition for Writ of Habeas Corpus or for Redress of Grievances, Form CF-MH 3090, pages 56 and 57 of the assembly, is a pre-formatted writ. Every outside person on the "Notice of Right" form must be given a copy, plus the detained person's attorney, if any.

What modifications would be needed to convert the judicial scheme envisioned by Florida into an administrative review process? Actually, very little. Instead of a pre-formatted writ, Form CF-MH 3090 would become a pre-formatted Administrative Appeal. Instead of flowing to the local judicial district for an automatic court hearing, the appeal would flow to an agency office. That might be a dedicated appeals officer, or someone like an ombudsman, or it might be a central panel of administrative law judges, all depending upon how any given state has organized its executive branch. So long as there is an ultimate right to judicial review, constitutionality of a fairly definitive administrative review process is not in doubt.[62] See the appendices for sample set of completed forms demonstrating one way an administrative review process could operate.

Once the administrative appeal process is complete, what must a detained person allege to obtain a day in court? Discounting esoteric jurisdictional questions (e.g., enemy alien spies in wartime being tried outside the United States by a military tribunal; aliens in Guantanamo Bay held as terrorist suspects), the detained person must either attack the constitutionality of the underlying law or else the agency's application of it. (Both approaches were tried in Adams and Reynolds; both failed.[63]) "Application" is, of course, the easier challenge for the detainee. Whatever the authorizing statute requires must be scrupulously followed. In both Adams and Reynolds, the public health agencies had strictly observed the law. Nonetheless, the agency must continue to bear down upon the details. Habeas corpus actually functions as a default release mechanism. The writ amounts to a demand by a judge that the detaining person show just cause for holding the detained person. Unless the reply brief, the "return" of the writ, contains both an authority and a convincing application of facts to the law, the writ will be granted, freeing the detained person.[64]

By contrast, what must an agency show to prevail? First, the agency must be acting within the scope of its lawful authority.[65] Second, the agency must establish that the person detained meets the criteria for the action taken, such as quarantine.[66] Mundane details such as detaining the correct person for the correct disease should never be a factor in day-to-day operations. However, during a massive outbreak, or some other profound crisis, tracking seemingly mundane details is likely to become a major task.

Thus, in summation, the culmination of the "administrative quality control process," the ultimate inspector, the final safeguard of rights, is going to be a judge reading the return of a motion to grant a writ of habeas corpus ad subjiciendum. Has the agency held someone who, in fact, had no reason to be tested for HIV? Has someone failed to supply the detained person with a prescribed medicine? Has a referral to a specialist been missed? If so, correction will come from a judge granting the writ. [67]

It is hard to quarrel with almost four centuries of common law development. The Great Writ has served us well in the past and will continue to do through future medical crises. Still, all the required process that is due may also be furnished by a legitimately functioning administrative review and appeal process. Such a process must provide notice, opportunity to be heard, and a neutral decisionmaker. A properly applied public health program has nothing to fear from a habeas corpus writ.


Appendix 1

Sample Notice of Right to Petition for

Review of Detention or for Redress of Grievances 

To: ____Jane Doe______

PLEASE BE ADVISED that you may petition the (Health Department Appeals Officer; for states without a central panel of Administrative Law Judges [ALJs]) (Division of Administration Appeals Branch [in states with a central ALJ panel]) for Review of Detention to question the cause and legality of your detention. Furthermore, you may also petition for Redress of Grievances alleging that you are being unjustly denied a right or privilege or that an authorized procedure is being abused.

Petitions for Review of Detention or Redress of Grievances (Form xxx) may be used for this purpose. Any petition must be signed by either you, your relative, friend, guardian, representative, attorney, or the Health Department. The staff of this facility will provide you a copy of the petition form immediately upon your request. The staff will also assist you in completing the petition form if you request such help. The Petition for Review or Redress will be submitted by the staff to the (Health Department Appeals Officer) (Division of Administration Appeals Branch) no later than the next working day after you submit the form to the staff.

____Tommy Atkins_____ _______________ _________

Signature of Detaining Facility Date (mm/dd/yyyy) Time am/pm

Administrator or Designee

This completed form must be given to all detained persons and also to those persons listed below as applicable.

 cc: Check when applicable and initial/date/time when copy provided:

Individual

 

Date Copy Provided

Time Copy Provided (am/pm)

Initials of WhoProvided Copy

Detainee

 

 

 

Guardian

 

 

 

Detainee's Attorney

 

 

 

Health Care Surrogate/Proxy

 

 

 


Appendix 2 

Sample Right to Petition for

Review of Detention or for Redress of Grievances

(Page 1 of 2)

 

IN RE: ___ __Jane Doe___________

CASE NO.: _____yyyy-xxxx________

__________Jane Doe______________,

Petitioner,

vs.

_________Tommy Atkins____________,

Administrator,

_____________________________________,

Facility Respondent.

1. This Administrative Appeal is filed pursuant to (local or state law authorizing the detention).and (local or state law establishing administrative appeals process).

2. Petitioner is being held by ___Gotham City Health Department, Tommy Atkins , (Administrator) in Gotham Clinic, (Facility), in Gotham (City), (State).

3. Petitioner believes that he/she is being deprived of her/his freedom for invalid and illegal reasons. Petitioner believes that her/his confinement is illegal because: _she has not had contact with Ralph Smith, an alleged carrier of typhoid fever. Petitioner is Jane K. Doe. Smith's alleged common law wife is Jane L. Doe. The Gotham City Health Department is holding the wrong Doe._________________________________________

_______________________________________________________________________________________________

and/or

________________________________________________________________________

________________________________________________________________________

4. Petitioner believes that he/she is being unjustly denied a right or privilege or that a procedure authorized by law is being abused. Petitioner believes that he/she is being unjustly denied a right or privilege or that a procedure authorized bylaw is being abused because: petitioner has not been allowed visitation since being confined to the Health Clinic.__________________________________________________________________________________________________________________________________________

________________________________________________________________________

5. (Strike if detained person can afford counsel) Petitioner is unable to afford counsel

 

CONTINUED OVER

Petition for Review of Detention or for Redress of Grievances (Page 2 of 2)

and would like the (local Public Defender) (local grantee/office of the Legal Services Corporation) (local bar's pro bono program) (or other counsel) notified to furnish representation for her/him in the above captioned matter.

WHEREFORE, Petitioner respectfully requests that:

the (Public Defender) (local grantee/office of the Legal Services Corporation) (local bar's pro bono program) (or other counsel) ______________________ be appointed to represent Petitioner in these proceedings; and

a return be set for a review of this Petition for Review of Detention and/or for Redress of Grievances for respondent to show by what legal authority he/she holds petitioner, and

a hearing be set for the purpose of an administrative inquiry into the allegations of this Petition for Redress of Grievances and for ordering a correction of abuse of rights or privileges granted under (local law authorizing detentions).

I HEREBY CERTIFY that the above stated matters in the Petition for Review of Detention and Redress of Grievances are true and correct to the best of my information, knowledge, and belief.

_____________________ ____________________ __________ am pm

Signature of Petitioner Date (mm/dd/yyyy) Time

_______________________________________________________

Printed Name of Petitioner

Facilities must provide this form to any detained person making a verbal request for access to the administrative appeal process. The completed form must be filed with the (Health Department Appeals Officer) (Division of Administration Appeals Branch) no later than the next working day and a copy retained in the detained person's record. A copy of the completed petition must be provided immediately to the detained person with copies of the Petition also provided to those listed below, as applicable.

 

cc: Check when applicable and initial/date/time when copy provided:

Individual

 

Date Copy Provided

Time Copy Provided (am/pm)

Initials of Who Provided Copy

Detainee

 

 

 

Guardian

 

 

 

Detainee's Attorney

 

 

 

Health Care Surrogate/Proxy

 

 

 


Appendix 3

 

Sample Return by Detaining Person of Right to Petition for

Review of Detention or for Redress of Grievances

 

IN RE: ___ __Jane Doe___________

CASE NO.: _____yyyy-xxxx________

__________Jane Doe______________,

Petitioner,

vs.

_________Tommy Atkins____________,

Administrator,

_______Gotham City Health Clinic ____,

Facility Respondent..

Respondent, Tommy Aktins (Name), Director, Gotham City Health Clinic (Facility and Title), on whom has been served a Petition for Review of Detention and/or for Redress of Grievances, by or on behalf of _ __Jane Doe______ (Petitioner), dated ___________ (insert date), respectfully answers the petition as follows:

1. Complete subparagraphs 1A (Facility Respondent has custody of Petitioner) or 1B (Facility Respondent does not have custody of Petitioner) as appropriate. If the Facility Respondent has custody of Petitioner, complete the remainder of the Return. In any event, the Return must be dated, signed, and returned to the office conducting the appeal no later than the date specified in the Notice of Appeal.

A. In response to the above captioned Petition for Review of Detention and/or for Redress of Grievance, I confirm holding the Petitioner. Petitioner is being detained in accordance with ___________________________________________ (local or state law authorizing the detention).

B. In response to the above captioned Petition for Review of Detention and/or for Redress of Grievance, I deny holding the Petitioner. (If the Facility Respondent is aware of the actual custodian and/or location of the Petitioner, so state.)

2 Respondent denies each and every allegation of fact alleged by petitioner in the petition except those facts specifically admitted herein.

3. Respondent certifies the true cause of detention and the lawfulness therefore of custody and/or detention are as follows (furnish full particulars of how the facts and circumstances pertaining to the Petitioner satisfy the public health criteria, laws, and regulations cited above as the authority to detain Petitioner):

a. Petitioner was interviewed as part of the contact tracing program for controlling communicable diseases as set forth in ________________________ (local or state health code). Petitioner is the common law wife of Ralph Smith, a person presently hospitalized with typhoid fever.

b. Typhoid fever is a highly contagious disease and thus appears on the list of diseases authorized for detention and/or involuntary hospitalization according to ____________ _______ ____________________ (local or state health code).

c. Petitioner agreed to provide a stool sample for typhoid fever testing. Laboratory reports of said sample contained typhoid bacilli levels of _____________ , far in excess of the clinical diagnostic level of _________________.

4. Petitioner's contention as set forth in _______________ (insert paragraphs disputed by Respondent) herein is without foundation or merit.

5. Petitioner, therefore, was and is properly subject to the jurisdiction and regulations of the Gotham City Health Department (name of facility) and, as such, was properly placed into Respondent's custody following Petitioner's medical testing and contact tracing.

Wherefore, Respondent requests the Appeals Officer dismiss the petition of Jane Doe

Dated: ________.

[Signature and title]

 

cc: Check when applicable and initial/date/time when copy provided:

Individual

 

Date Copy Provided

Time Copy Provided (am/pm)

Initials of Who Provided Copy

Detainee

 

 

 

Guardian

 

 

 

Detainee's Attorney

 

 

 

Health Care Surrogate/Proxy

 

 

 



[1] Blackstone, William. Commentaries on the Laws of England: A Facsimile of the First Edition of 1765--1769. Chicago: University of Chicago Press, 1979, available at: http://press-pubs.uchicago.edu/founders/ documents/a1_9_2s4.html, last visited June 14, 2004. "But the great and efficacious writ in all manner of illegal confinement, is that of habeas corpus ad subjiciendum; directed to the person detaining another, and commanding him to produce the body of the prisoner with the day and cause of his caption and detention, ad faciendum, subjiciendum, et recipiendum, to do, submit to, and receive, whatsoever the judge or court awarding such writ shall consider in that behalf." Justice Joseph Story, in his Commentaries on the Constitution (1833) 3:1333, called it the "great and celebrated writ."

[2] Wright, Miller and Cooper, Federal Practice and Procedure: Jurisdiction 2d 4261 and n.3, cited in Coalition of Clergy v. Bush, 189 F. Supp. 2d 1036, (C.D. Cal., 2002) affirmed in part, vacated in part 310 F.3d 1153 (9 Cir.) 2002, cert denied, 2003 U.S. LEXIS 3702 (U.S., May 19, 2003). N7 of United States v. Hayman, 342 U.S. 205, 210, 72 S. Ct. 263 (1952) gives several other, much older sources on the origins of the writ, as follows: "The ancient origins of habeas corpus are traced in 9 Holdsworth, History of English Law (1926), 108-125; Jenks, The Story of Habeas Corpus, 18 L. Q. Rev. 64 (1902); Longsdorf, Habeas Corpus: A Protean Writ and Remedy, 8 F.R.D. 179 (1948)." N7 of Hayman opens with Blackstone's "the most celebrated writ in the English law" observation, Id. at 210, citing 3 Blackstone's Commentaries 129.

[3] Id.

[4] Blackstone called the legal maneuvers of the King's Bench protecting Charles I "pitiful evasions" and noted that Selden's "resentment was not cooled at the distance of four and twenty years." Blackstone, supra, n.1. Story agreed "pitiful evasions" aptly described the situation and also used that phrase (1335).

[5] Simpkin, David, Liberty Writ Large: Habeas Corpus (2002), available at: http://www.lawlink.co.nz/resources/habeas.pdf, last accessed Jun 14, 2004.

[6] Blackstone, supra, n.1.

[7] Story, supra, n.1.

[8] State ex rel. McBride v. Superior Court for King County, 103 Wash. 409, 417; 174 P. 973, 976 (Wash. 1918).

[9] Id.

[10] Id.

[11] Kathleen M. Sullivan and Gerald Gunther, Constitutional Law, 14th Ed., Appendix A, page A-4 (2001).

[12] Article 1, Section 21 (1975).

[13] The complete laws and codes of Louisiana are available at: http://www.legis.state.la.us. The data bases can be searched by key word, article number, or by type of legislation (broken out by "law body"). For example, the drop down menu item for the Code of Civil Procedure is "CCP."

[14] Id.

[15] http://www.azleg.state.az.us/FormatDocument.asp?inDoc=/const/2/14.htm

[16] http://www2.lsb.state.ok.us/oc/oc_2-10.rtf

[17] http://skyways.lib.ks.us/KSL/ref/constitution/rights.html

[18] Article 1, Section 10. http://www.state.me.us/sos/arc/general/constit/consar1.htm.

[19] http://www.legislature.state.al.us/misc/history/constitutions/1868/1868_1.html

[20] Art 1, Sec. 17 http://www.harbornet.com/rights/alabama.txt

[21] People ex rel. Jennie Barmore v. Robertson et al, 302 Ill. 422; 134 N.E. 815 (Ill. 1922). The tender sensibilities for the fairer, weaker sex supposedly common in a more innocent age did not prevent the male justices from noting that Chicago Board of Health obtained several "bowel discharges, and an examination of them revealed the presence of large numbers of typhoid bacilli." Id. at 816. Communicable fatal illnesses tend to dampen privacy and delicacy concerns.

[22] Id.

[23] Id. at 819. Readers unfamiliar with the great flu outbreak of 1919 should reflect upon the sobering fact the influenza epidemic killed more civilians in peacetime than the contending militaries lost in all the combat of WW I. Military casualties of WW I amounted to about 8.5 million killed and some 21 million wounded. World War I Casualty and Death Tables, last accessed July 11, 2004, available at: http://www.pbs.org/greatwar/resources/casdeath_pop.html. By contrast, the flu epidemic had killed, world wide, about 21 million people by late 1919. A Science Odyssey: People and Discoveries: Worldwide flu pandemic strikes, 1918 - 1919 , last accessed July 11, 2004, available at: http://www.pbs.org/wgbh/aso/databank/entries/dm18fl.html.

[24] Id. at 821.

[25] Illinois v. Adams, 149 Ill. 2d 331; 597 N.E.2d 574 (Ill. 1992).

[26] Ill. Rev. Stat. 1989, ch. 38, par. 1005-5-3(g).

[27] Adams, 597 N.E. 2d. at 576.

[28] Varholy v. Sweat, 153 Fla. 571, 575, 15 So. 2d 267, 270 (1943).

[29] Id. Of course, the principles of public health law also survived these changes in provider culture.

[30] Adams, 597 N.E. 2d. at .

[31] Adams, 597 N.E. 2d. at 580, 581.

[32] Adams, 597 N.E. 2d. at 581, also citing Michigan Department of State Police v. Sitz (1990), 496 U.S. 444, 453-54, 110 S. Ct. 2481, 2487.

[33] Within Illinois, Adams is at least the second time the Barmore case has been tired. Baker v. Strautz, was the other time that Supreme Court had upheld a testing law; 386 Ill. 360; 54 N.E.2d 441 (Ill. 1944). The testing principle has also been upheld by federal courts. See Reynolds v. McNichols, 488 F.2d 1378 (10th Cir. 1973), which is still good law today.

[34] 103 Wash. 409, 419; 174 P. 973, 977 (Wash. 1918). Four years later, the Illinois Supreme Court reached the same conclusion in slightly different words: "The exercise of the police power is a matter resting in the discretion of the legislature or the board or tribunal to which the power is delegated, and the courts will not interfere with the exercise of this power except where the regulations adopted for the protection of the public health are arbitrary, oppressive and unreasonable. The court has nothing to do with the wisdom or expediency of the measures adopted." Barmore, supra, at 817.

[35] Id., at 976, 977.

[36] As observed by in McBride, "[i]n Ekiu v. United States (citation omitted), the Supreme Court denied the writ of habeas corpus, [holding] . . . that the law giving the immigration officers exclusive authority to determine the right of a party to land was [not] so far unconstitutional as to deprive the petitioner of her liberty without due process of law." Over 100 years later, a concurring Supreme Court opinion reaffirmed that principle in Demore v. Hyung Joon Kim, 538 U.S. 510; 123 S. Ct. 1708 (2003), noting that [b]ecause federal immigration laws from 1891 until 1952 made no express provision for judicial review, what limited review existed took the form of petitions for writs of habeas corpus. See, e.g., Ekiu v. United States, 142 U.S. 651, 12 S. Ct. 336 (1892)." Demore, 538 U.S. at 538, 539.

[37] For example, the Supreme Court ruled in 1983 that Secretary of Health and Human Services may rely upon preformatted guidelines in determining the availability of alternative employment by disabled applicants rather than having to generate other evidence for each case. See Heckler v. Campbell, 461 U.S. 458, 103 S. Ct. 1952, 1957-59 (1983).

[38] A common feature of quarantine laws has always been a "catch-all" category of wide discretion left to the health departments since no legislature could make an exhaustive list of present contagious diseases, much less anticipate future ones. See Barmore, 134 N.E. at 819.

[39] As Blackstone observed in 1768, "oppression does not always arise from the ill-nature, but sometimes from the mere inattention, of government." Blackstone, supra, 3:127

[40] Milligan, 71 [4 Wall.] U.S. 2 (1866); Quirin, 317 U.S. 1, 63 S. Ct. 2 (1942); Hamdi, 316 F.3d 450 (4th Cir. 2003), rehearing denied by, rehearing, en banc, denied by Hamdi v. Rumsfeld, 337 F.3d 335 (4th Cir., 2003); certiorari granted by, motion granted by Hamdi v. Rumsfeld, 540 U.S. ----, 124 S. Ct. 981, 2004 U.S. LEXIS 12 (U.S., 2004); vacated by, remanded by Hamdi v. Rumsfeld, 2004 U.S. LEXIS 4761, 2004 WL 1431951, (U.S., June 28, 2004).  

[41] Milligan, 71 U.S. at 5, 6.

[42] Id. at 6.

[43] Id. at 127. The Milligan Court went on to say that "[m]artial rule can never exist where the courts are open, and in the proper and unobstructed exercise of their jurisdiction. It is also confined to the locality of actual war." Id.

[44] Virtually none of the facts in the case were disputed. Both sides agreed to numerous stipulations. One defendant, Haupt, claimed to be an American citizen. However, citizenship had no relevance to the case. Quirin, 317 U.S. at 20, 21.

 

[45] By passing our boundaries for such [sabotage] purposes without uniform[,] . . . such enemies become unlawful belligerents subject to [military] trial and punishment. Citizenship in the United States of an enemy belligerent does not relieve him from the consequences of a belligerency which is unlawful because in violation of the law of war. . . . We have no occasion now to define . . . the ultimate . . . jurisdiction of military tribunals to try persons according to the law of war. It is enough that petitioners here, upon the conceded facts, were plainly within . . . [that jurisdiction]. . . . We hold only that those particular acts constitute an offense against the law of war which the Constitution authorizes to be tried by military commission [emphasis added]. Id. at 37, 45, 46. Note also that Hamdi interprets Milligan as turning upon the "central" fact "that Milligan was not a prisoner of war, but a resident of Indiana arrested while at home there." Hamdi, 2004 WL 1431951 at 9.

[46] [The government] urged that if they are enemy aliens or if the Proclamation [by President Roosevelt] has force, no court may afford the petitioners a hearing. But there is certainly nothing in the Proclamation to preclude access to the courts for determining its applicability to the particular case. And neither the Proclamation nor the fact that they are enemy aliens forecloses consideration by the courts of petitioners' contentions that the Constitution and laws of the United States . . . forbid their trial by military commission . . . . [W]e have resolved those questions by our conclusion that the [military] Commission has jurisdiction to try the charge preferred against petitioners. There is therefore no occasion to decide contentions of the parties unrelated to this issue. Quirin at 25.

[47] Hamdi, 2004 WL 1431951 at 2.

[48] Id. at 10.

[49] Id. at 16,17.

[50] Id. at 10, citing Matthews, 424 U.S. 319, 96 S.Ct. 893 (1976).

[51] Matthews, 424 U.S at 335.

[52] Hamdi, 2004 WL 1431951 at 19.

[53] Id., citing Tumey v. Ohio, 273 U.S. 510, 522, 47 S.Ct. 437 (1927).

[54] Hamdi at 19.

[55] Id.

[56] Id.

[57] "Hearsay, for example, may need to be accepted as the most reliable available evidence from the Government in such a proceeding. Likewise, the Constitution would not be offended by a presumption in favor of the Government's evidence, so long as that presumption remained a rebuttable  one and fair opportunity for rebuttal were provided." Id. at 17.

[58] Id. This list was assembled by merging the rationale of Hamdi with three supporting cases it cited, each of which in turn cited at least one earlier case. Cleveland Bd. of Ed. v. Loudermill, 470 U.S. 532, 542, 105 S.Ct. 1487 (1985) is a staple of Administartive Law. Loudermill quoted Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652 (1950), itself a staple of first year federal civil procedure courses. Concrete Pipe & Products of Cal., Inc. v. Construction Laborers Pension Trust for Southern Cal., 508 U.S. 602, 113 S.Ct. 2264 (1993) and Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983 (1972) are far less well known cases.

[59] The "Baker Act," the Florida Mental Health Act, is Florida Statutes ("F.S.") 394.451 et seq. A complete guide to the operation and application of the law, including forms, a provider's handbook, the patient's rights pamphlet, and related matters, including the history and purpose of the law, is available at: http://www5.myflorida.com/cf_web/myflorida2/healthhuman/substanceabusementalhealth/laws/index.html, last accessed July 5, 2004. Note also that the standard Baker Forms are so comprehensive and complete that they satisfy all the requirements of the U.S. habeas corpus statute, 28 USC Sec. 2241, et seq. For example, 28 USC 2241, "Application," provides: "Application for a writ of habeas corpus shall be in writing signed and verified by the person for whose relief it is intended or by someone acting in his behalf. It shall allege the facts concerning the applicant's commitment or detention, the name of the person who has custody over him and by virtue of what claim or authority, if known." Available at: http://www4.law.cornell.edu/uscode/28/pVIch153.html. Last accessed July 11, 2004. (kmh note: I dug out my 1st year Fed Civ Pro FRCP 2002 edition softback and they are word-for-word the same. The on-line version has the notes and statute cites, which - of course - Lexis and WESTLaw would also have.)

[60] F.S. 394.457, Operation and Administration, (1), Administration, provides that "[t]he Department of Children and Family Services is designated the 'Mental Health Authority' of Florida. The department and the Agency for Health Care Administration shall exercise executive and administrative supervision over all mental health facilities, programs, and services." F.S. 394.453, Legislative Intent, provides "[i]t is the further intent of the Legislature that the least restrictive means of intervention be employed based on the individual needs of each person, within the scope of available services.

[61] Rights of Patients, Form CF-MH 3103, available at www5.myflorida.com, supra, last accessed July 5, 2004. All of the forms discussed in this paper were downloaded from the "myflorida" web site.

[62] For example, Louisiana's present administrative law central panel was struck down by a district court in Wooley v. State Farm, No. 502-311, Division D, 19th Judicial District Court (2003), available at: https://biotech.law.lsu.edu/la/briefs/state_farm_dc.htm. Preclusion of judicial review was the major defect in the statute. While the state Supreme Court has heard the case (a direct appeal is automatic whenever a statute is declared unconstitutional), it had not been decided at press time.

[63] Adams, supra, 597 N.E.2d 574 (Ill. 1992); Reynolds, supra, 488 F.2d 1378 (10th Cir. 1973).

[64] As expressed in Milligan, "[t]he suspension of the privilege of the writ of habeas corpus does not suspend the writ itself. The writ issues as a matter of course; and on the return made to it the court decides whether the party applying is denied the right of proceeding any further with it." 71 U.S. at 130, 131.

[65] Barmore, supra, 134 N.E. at 819. The health department both used the proper law and stayed within its scope of powers.

[66] The Chicago Board of Health was easily able to demonstrate, with expert testimony and laboratory results, that Jennie Barlow was indeed a carrier of typhoid fever. Nonetheless, the Board also had to appear and make that demonstration. "Knowing" is not enough; "showing" is required. Id. at 821.

[67] See In the Matter of the Application of WILLIAM H. SMITH et al. for a Writ of Habeas Corpus, etc.,

146 N.Y. 68, 40 N.E. 497 (NY 1895). The New York City Board of Health held some men in quarantine, refusing to release them until they consented to be vaccinated against smallpox, because they were employed as movers in an area of the city with a smallpox outbreak. The court held that "the actual fact and not a mere possibility" was needed to confine the men. " It was necessary . . . that . . . the danger should actually have existed, in the infection of the person or things, or in their having been exposed to the disease. While [a public officer] was vested with great and extensive powers, in order, in the presence of danger, to act summarily for the preservation of the public health, he was bound to show a state of facts which justified such an exercise of those powers." Since the Board could not meet that factual requirement, the movers were released.

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