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Bill restricting governor, mayor, health officials’ emergency powers is nearly through Utah Legislature

SB195 nears final approval despite concerns from Salt Lake County Mayor Jenny Wilson

Dr. Kurt Hegmann, director of the Rocky Mountain Center for Occupational and Environmental Health, Lt. Gov. Spencer Cox, Gov. Gary Herbert, and Dr. Joseph Miner, executive director of the Utah Department of Health, confer after a press conference at the Capitol in Salt Lake City on Friday, March 13, 2020. Officials announced at the press conference that Utah’s K-12 schools will experience ‘soft closure’ for 2 weeks as the state deals with the spread of COVID-19.
Dr. Kurt Hegmann, director of the Rocky Mountain Center for Occupational and Environmental Health, Lt. Gov. Spencer Cox, Gov. Gary Herbert, and Dr. Joseph Miner, executive director of the Utah Department of Health, confer after a press conference about COVID-19 at the Capitol in Salt Lake City on March 13, 2020. A bill to restrict Utah gubernatorial, mayoral and local health department powers to issue prolonged emergency orders is moving through the state Legislature.
Spenser Heaps, Deseret News

SALT LAKE CITY — A bill to restrict Utah gubernatorial, mayoral and local health department powers to issue prolonged emergency orders cleared its near-last legislative hurdle on Thursday, the eve of the final day of the state Legislature’s 45-day session.

SB195, sponsored by Senate Majority Leader Evan Vickers, R-Cedar City, was approved by the Utah House of Representatives Thursday evening on a bipartisan, 68-4 vote, despite a failed attempt by a Republican lawmaker to block future mask mandates and strip local health departments of their ability to issue public health orders.

The House did, however, amend the bill to explicitly prohibit government restrictions on religious gatherings unless its the “least restrictive means available” and “requires reasonable accommodations be provided for certain religious practices or rites.”

The bill now goes back to the Senate. There, it’s expected to gain final legislative approval Friday before heading to the governor’s desk.

The bill has been the subject of heavy negotiation between House and Senate leadership, as well as Gov. Spencer Cox and the Utah Department of Health. Legislative leaders have backed the bill, arguing the state of Utah’s current emergency powers law never anticipated a long-lasting emergency like that of the COVID-19 pandemic. Utah’s statewide COVID-19 emergency declaration will reach its one-year anniversary Saturday.

“The one thing that was never really part of the code was a long-term pandemic,” the bill’s House sponsor, House Majority Assistant Whip Val Peterson, R-Orem, said.

If approved, SB195 would limit the duration of a public health order to 30 days. It would also only allow the Legislature — and other legislative bodies such as county or city councils — to extend or terminate an order. It would also give legislative bodies the power to end an “order of constraint,” such as a stay-at-home order, at any time.

It would also block governors, mayors or public health departments from issuing a new emergency for the same disaster to replace an expired or terminated order unless there are exigent circumstances like a “significant change” after expiration that “substantially increases the threat to public safety or health,” according to the bill.

It also would require 24-hour notice to legislative leaders and legislative bodies before an emergency order could be extended, as well as a public legislative meeting to evaluate whether to extend the health order at the request of the health department.

Additionally, the bill would slash the fine the government can currently impose against someone who violates health orders down from $10,000 per violation, to no more than $150 in most cases. The bill would allow fines of up to $5,000, but only for those who “willfully disregard or recklessly violate” the orders in a way that “is likely to result in a serious threat to public health.”

The bill stemmed from the power struggle that persisted between Gov. Gary Herbert and the Legislature throughout the COVID-19 pandemic, with lawmakers concerned that the executive branch’s prolonged powers undermined the legislative’s branches power. Last summer, lawmakers refused to extend Herbert’s pandemic emergency order, leading the governor to issue new emergency orders each time they expired in order to keep them in place.

The bill came after mainly conservative lawmakers griped about Herbert’s COVID-19 orders, particularly the mask mandate. A Piute County commissioner compared the governor to Hitler after Herbert approved requests from Salt Lake and Summit counties to require mask wearing in public. Last fall, GOP lawmakers fumed over a restriction Herbert put in place to limit social gatherings between households. Amid the outcry Herbert repealed that restriction ahead of Thanksgiving.

Cox has said he’s been in close negotiations with legislative leadership on SB195. It’s a different bill, HB294, which would spell out the “endgame” to Utah’s COVID-19 restrictions, that was giving him heartburn Thursday.

“We’re watching this closely. I hate that we’re having these fights again right now. We’re so close to the end of this,” the governor said, adding, “There are a lot of good things in that bill, things that we agree with. We’re all so close. The end is in sight.”

But Cox stopped short of saying he’d veto the bill.

“We’ll look at it. We’ll see what happens,” he said. “We’ll see as it comes to my desk what’s ultimately included and where it ends up and then we’ll make a decision.”

Salt Lake County Mayor Jenny Wilson, a Democratic mayor representing Utah’s most populous county, issued a statement earlier this week saying she remained opposed to the bill because her primary issues with it had not been addressed.

“Legislative bodies manage budgets and make policies. Chief executives manage the staff and assets that are necessary to protect the health and safety of the public as well as private property,” Wilson said in a prepared statement. “Additionally, health departments serve a vital role during health emergencies given their specific expertise, and that expertise should not be ignored or undermined.”

Wilson said the bill was an overcorrection from issues stemming from the COVID-19 pandemic. She called on lawmakers not to rush the bill, but spend the next year discussing it.

“The appropriate time for these discussions is in the ‘recovery’ phase of the emergency rather than during the emergency itself,” Wilson said.

Wilson said her main concerns with the bill is the provision to allow a legislative body to override a local health order, concerned that it “impairs the ability of an executive to nimbly and swiftly manage an emergency.”

But the bill didn’t go far enough for some House GOP lawmakers.

Rep. Phil Lyman, R-Blanding, tried to change the bill to prevent future mask mandates period and strip local health departments of being able to issue public health orders, leaving that power only to the governor.

“It comes back to constitutional rights to privacy and healthy people being treated as unhealthy people,” Lyman said.

He also argued governors, not public health departments, should be the ones to issue such orders for “political accountability.”

“When we start to close down businesses, to quarantine people ... there is a cost that comes with that,” Lyman said. “When the stakes are that high I think it’s incumbent that the elected officials are the ones who are on the hook for that. It’s called political accountability.”

But Peterson said he “strongly opposed” Lyman’s change, saying he “we worked really hard” on the bill in negotiations with the Senate and the governor’s office to strike the appropriate balance.

“This bill creates a much better process, and one we can all use to work together,” Peterson said.

Vickers earlier Thursday told reporters in a Senate leadership media availability he expected Lyman’s attempt to change the bill. But he expected the majority of the House would strike it down, like it did with Lyman’s attempt to also amend the bill spelling out the “endgame” to Utah’s COVID-19 restrictions to implement an immediate end to the statewide mask mandate.

He was right. With a loud “no” voice vote, Lyman’s motion to amend failed.

Rep. Candice Pierucci, R-Herriman, supported the bill, acknowledging lawmakers’ “frustrations” with “not only COVID-19 but also the response to it.” She said the bill is better than the status quo to “restore the balance to the Legislature being treated as an equal branch of government.”

“It helps us get out of this dark tunnel and gets us to a better place if heaven forbid a pandemic like this were to happen again,” she said.

Another lawmaker, Rep. Mark Strong, R-Bluffdale, tried to spread language across the House journal to go along with SB195 spelling out an intent of the Legislature that state and local government officials “take into consideration the impact of those emergencies on health and safety outcomes with the impact of potential decisions on the liberties of the people to move, to act, to exercise their right to self-government.”

“Given this essential role of government when future states of emergency or public health emergencies occur and impact the state of Utah there must be an intentional and significant consideration given, not only to the potential impact of the emergency on the health and safety of the citizens of the state but also to the impact of citizens’ constitutionally protected rights, such as the right to life, liberty, property, free exercise of religion, peaceable assembly, etc,” the language would have stated.

But Rep. Timothy Hawkes, R-Centerville, opposed Strong’s motion, saying it only “muddies the water” rather than letting the bill speak for itself. Strong’s motion also failed handily.

By and large, SB195 won bipartisan support from both Republicans and Democrats, though four lawmakers voted against it. They were Democrats from Salt Lake City, including Rep. Sandra Hollins, Rep. Angela Romero, and Rep. Mark Wheatley. Lyman was the only Republican to vote against it.

Contributing: Lisa Riley Roche