Sealed NM isolation orders raise concern over safety, liberties

The revelation last week that two patients with the coronavirus were court-ordered to self-isolate raises new concerns about civil liberties during the pandemic that deserve answers.

A spokesman for the N.M. Department of Health told Journal Capitol Bureau Chief Dan Boyd on Wednesday that the state agency sought court intervention within the past three weeks to require two people to self-isolate. It was the first time an isolation provision in a 2003 state law Gov. Michelle Lujan Grisham has been utilizing throughout the pandemic has been invoked.

“Our goal is not to punish or imprison people; it’s to isolate someone with COVID using the least restrictive means necessary when that person refuses to self-isolate,” said DOH spokesman David Morgan.

Morgan said “respondents” would typically be isolated in a health facility but could be isolated in their homes. Unfortunately, we don’t know what happened because the court records in both cases were automatically sealed. Morgan said that’s because they contain protected information. He added the health department could not provide further details, including where the two people live.

The 2003 Public Health Emergency Response Act that gives the governor’s administration the extraordinary power to isolate or quarantine people to prevent or limit the spread of a communicable disease includes certain safeguards intended to protect civil liberties, including the right to request a court hearing. Little is known about the two recent cases, such as how did the two people present a public threat, how many people did they come in contact with, how are they being quarantined, were they afforded the opportunity to confront their accusers in court and did they retain counsel or have to rely on court-appointed defense attorneys?

N.M.’s court system has been bracing for isolation and quarantine orders. A training session last month included roughly 90 attorneys who volunteered to represent individuals in such cases, and two judges in each judicial district have been designated to hear public health emergency cases. In an op-ed in the Journal May 1, Second Judicial District Court Judge Daniel Ramczyk noted the judiciary is the branch of government from which Americans seek protection when they believe their freedoms are threatened.

“The judiciary has been called upon to assume a dual role during these extraordinary events. First, courts first must work with government in protecting the public from COVID-19. Second, the courts concurrently must protect individuals’ constitutional and due process rights from any overreach by the government in its response to the virus,” wrote Ramczyk, who has more than 17 years on the bench.

“None of us gave the government carte blanche to whittle away our freedoms,” the judge wrote. “How to protect and guarantee those rights can be challenging, at times, and COVID-19 is forcing the judiciary to re-think how it does business. The judicial branch will rise to the challenge.”

Those are encouraging words from a seasoned judge, but a legislative adjustment to this blanket sealing is in order to alleviate public health and civil liberty concerns. Were the two “respondents” placed under guard in a health facility, or simply told to go home with an ankle bracelet? Sealing the court cases buries that important information, as well as whether these individuals are being treated fairly and what others face should they act in whatever way these two did. Our courts should be able to shield private health information and still err on the side of disclosure in any future isolation cases.

An ounce of prevention is worth of pound of cure when public safety and constitutional liberties are at stake.