By Darren Smith, Weekend Contributor.
Last week several parents on behalf of themselves and their minor children filed a lawsuit in the Superior Court of the State of Washington seeking injunctive relief and for the Court to declare the closures unconstitutional as the governor’s proclamations violate the “paramount duty on the part of the state to make ‘ample provision for the education of all children residing within its borders.”
The underlying information alleged within the lawsuit presents facts that Plaintiffs assert demonstrate that the current state of the COVID-19 virus’ threat no longer credibly constitutes an actual emergency and that the governor’s Proclamations as a result lack a foundational basis to remove children from schools. The suit further states the governor applied a wide brush to declare all Washingtonians as being at risk when the epidemiological evidence shows that the COVID-19 infection and death rate mirrors that of Influenza and Pneumonia infection rates of past years yet no public emergency was declared then. Furthermore, the illness and death rate for those less than twenty years in age is non-existent in the state and nearly everywhere else sampled. Plaintiffs proffer that the failing of the governor to limit the scope of application of the Proclamations to those actually vulnerable to the virus, the elderly and sick, infringed upon the constitutional rights of the plaintiffs and other children who have physiologically shown no significant vulnerability to the virus yet suffered the violation of their right to education resulting from an overly-broad inclusion under the declarations of state of emergency.
The complaint also mentions the sub-par nature of the education provided the minor Plaintiffs by the state, equating in one example only an hour of education and that much of what is expected is for grade school children to self-initiate and self direct their own education. One child, resides at times with a parent who has no Internet service at his residence and thus cannot facilitate an ample accomodation to meet the child’s special educational needs.
Last month I featured an article stating my belief that Washington Governor Jay Inslee’s closure of all in-person public school classes via his Declarations of Emergency violated the Article IX Sec. 1 of the Washington Constitution.
The state’s Supreme Court held in McCleary v. Washington that “The word “ample” in article IX, section 1 provides a broad constitutional guideline meaning fully, sufficient, and considerably more than just adequate.“
I believe a strong argument can be made that the rather arbitrary determination of Governor Inslee to cancel a third of a year of public school instruction statewide, under penalty of a criminal offense inferred presumably by educators unilaterally offering in-class instruction, without a “make up” period prior to the succeeding school year, not only usurps the legislature’s role in facilitating the constitutionally mandated paramount duty to provide ample education but denies individual students the opportunity to compete in the economy and democracy on an equal footing with those in other states.
While McCleary primarily addressed the then-current deficiency of primary school funding, the court did reiterate the paramount importance and constitutional right of students to receive the opportunity for education:
“The word “education” under article IX, section 1 means the basic knowledge and skills needed to compete in today’s economy and meaningfully participate in this state’s democracy.“
Yet I will leave it to the reader and the Court to interpret the consitutional rationale in opposition to the governor’s mandates.
Herefollows the complaint filed in Superior Court. Please note that I chose to redact the names of the minor students mentioned in the complaint for their own privacy. The appellate courts in this state tend to use only initials of minor persons contained in the courts’ opinions and I will write with analogous style out of concern of their privacy:
Katie Simper, on her own behalf and on behalf of [Redacted], her child in Washington’s public schools; Kirsten Robbins, on her own behalf and on behalf of [Redacted], her child in Washington’s public schools, and Jennifer Anderson, on her own behalf and on behalf of [Redacted], her child in Washington’s public schools, Plaintiffs,
State of Washington, and Jay Inslee, It’s Governor, Defendants.
Plaintiffs allege as follows:
- Preliminary Statement
In Late 2019 or early 2020, a novel viral infection began circulating in Washington. The first hint of problems came in March 2020, when dozens of residents in two nursing homes in King County fell sick and many died; they were confirmed to have been infected with COVID-19, then running rampant in Hubei province, China.
Available evidence and modeling suggested a potential disaster; the virus spread rapidly by aerosol, and resulted in so many serious illnesses that the state’s hospital capacity would soon be overwhelmed.
Models suggested that within weeks, even with social distancing, Washington state would run out of hospital beds, ICU beds, and ventilators.
It was feared that people who contracted COVID—or had other pressing medical needs—would die from lack of access to care, where they would have survived if only we could save the hospital system.
Many measures were implemented to avert this budding crisis. The U.S. Army built a field hospital at a sports stadium in downtown Seattle; health care workers mobilized; businesses began mandating work-at-home for workers whenever possible. Downtown Seattle became a ghost town.
Before long, in response to the predicted disaster, Governor Inslee began mandating ever tighter controls on movement and gathering. Washington pulled together to “flatten the curve.”
The goal of these constraints—voluntary and mandated—was to spread the rate of infection, illness, and death out over time. Experts in epidemiology cautioned that the virus’ spread was not really controllable, and the most we could hope for was to slow the rate.
Slowing the rate was viewed as a critical goal, because even if the same number of people would eventually get infected, get sick, or get very sick, fewer would die from lack of access to medical care.
In other words, with a limited stock of hospital beds, ICU beds, and ventilators, and knowing that more people would need them than was available, the only course of action was to take drastic steps to ensure the need was spread over time, instead of everyone needing the same beds at the same time.
Based on available estimates of viral spread rates, severity of illness, percentage of infected who needed hospitalization, length of hospital stays, and need for ventilators, a looming threat was identified.
The Governor’s “Stay Home, Stay Health” order was intended to eliminate that threat to public order by slowing the spread of disease.
RCW 43.06.220(1) authorizes the Governor, in the event of an emergency, to suspend a number of constitutional rights, including the rights of assembly and travel, to protect life, health and property.
However, over the weeks since the state has imposed limits on its citizens’ Constitutional rights, more and more data have emerged regarding COVID-19. It has been almost unabated good news.
Far fewer infected people need major medical intervention than expected at the outset.
The rate of spread has slowed beyond even early predictions of transmission under “social distancing.”
Ventilators, far from being in short supply in Washington, became a surplus. We were fortunate to be able to send 500 to New York where the disease spread more rapidly in the cramped city, with its extreme reliance on public transportation.
The Army field hospital was dismantled without ever being used.
More good news emerged. Testing and study around the world developed treatment protocols for those severely affected.
Among other things, many physicians urged far less use of mechanical ventilators than initially suggested.
This greatly reduces the potential threat to Washington’s health care system of a lack of capacity of ventilators.
Yet more good news emerged. Testing has repeatedly revealed that far more people have been infected—but were completely asymptomatic—than initially assumed possible.
While it remains possible that an asymptomatic infection does not result in immunity, this nonetheless shows that the ratio of infection to cases, of infections to severe cases, of infections to cases requiring hospitalization, is lower than initially feared.
The predictive models have adopted these new facts—and they reveal yet more good news. It appears that the feared threat to Washington’s hospital system, of being overwhelmed by people suffering from COVID-19 is gone.
More good news: there have been far fewer COVID-19 deaths in Washington than any early model predicted.
More good news: There have been ZERO deaths in Washington form COVID-19 of people under age 20.
In fact, about 50% of the approximately 800 deaths in Washington have been among people over age 80.
It appears that Washington is similar to almost every other state except New York: COVID-19, feared as a threat to life and health of everyone in the state, turns out to be a selective killer, targeting the very old and infirm, those with serious other illnesses, and particularly those in nursing homes and other long-term care facilities.
Unfortunately, the Washington Department of Health has, to date, refused to disclose to the public the most relevant data: what percentage of the state’s deaths are from the nursing home and long term care population? What percentage have serious co-morbidities? What is the detailed age breakdown.
What we have learned over the past month and a half is this: COVID-19 presents a statistically insignificant threat to the health of children, young adults, and healthy adults of middle and even slightly advanced age.
It spreads with many, many asymptomatic cases.
In nursing homes, and among Washingtonians with pre-existing illnesses, it can be a devastating and lethal disease.
Unfortunately, the Department of Health has clouded the issue, while failing for weeks to protect the vulnerable populations in Washington.
Today, we know far more than we knew in early March about COVID-19. We know that the emergency has been averted. We know that the threat to vulnerable populations remains. We know that there is no longer an emergency in the State.
That should be viewed as great news: we can address the vulnerable population with targeted measures. We can declare victory.
Unfortunately, the Governor insists that he, and he alone, can determine whether an emergency exists. He claims that it’s an emergency if he says it’s an emergency, and that no one—not the legislature, and not the courts—can gainsay him. He claims that the emergency can continue as long as he thinks it continues, and no one but he can say otherwise.
The Governor has assumed the sole power to determine whether a person in Washington can worship, can peaceably assemble, can work, can build needed housing, can offer living space for rent, can engage in any activity.
But the facts, and the science, are clear: when the entirety of public knowledge is examined, there is no public disorder or threat to public order in the State of Washington. The governor’s claim to the contrary is demonstrably false.
The State was slow in its initial response to COVID-19 in nursing homes, but the hospitals turned their expertise over to helping staunch the infection in those vulnerable spaces. We have learned best practices for keeping those spaces as safe as possible in light of the serious health needs of the residents.
While older and sicker relatives remain at greater risk, we now know that the emergency has been contained.
While the governor says otherwise, the facts are clear, and the Constitution does not authorize him to maintain infringements on Constitutionally guaranteed civil liberties on his mere say-so, with no avenue of review or redress.
Judicial review of the governor’s claim of emergency must be available. Without review, a legitimate statute designed with flexibility to allow quick response to true emergent threats becomes a tool for long-term imposition on Constitutionally guaranteed civil liberties from the mere whim of the state’s executive.
In addition to the Constitutional guarantees that may only be overridden in the case of a genuine emergency, there is an additional reason the Governor’s action is unconstitutional: it violates our state constitution’s declaration of the “paramount duty” on the part of the state to make “amply provision for the education of all children residing within its borders….” Wash. Const. Art. IX sec.1.
As a result of Proclamations 20-08, issued on March 12, 2020, and supplemented by Proclamations 20-09 and 20-09.1, all public and private schools in the State of Washington have been closed through June 19, 2020.
Although the original and subsequent orders were based upon a belief that school closures were necessary because of the inability of our hospital system to handle the projected number of COVID-19 cases, current date indisputably establishes that hospitals now have sufficient capacity to deal with foreseeable cases of COVID-19.
At the time the Governor closed the public schools, he encouraged the substitution of “on-line” or “distance” learning for actual attendance in a school building. However, as the evidence in this case will clearly demonstrate, leaving children alone to engage in self-directed electronic learning is grossly inadequate to meet the educational needs of Washington children. And it clearly violates the State’s constitutional duty to provide a basic education for all children residing in Washington.
II Jurisdiction and Venue
This Court has jurisdiction over the subject matter of this lawsuit and over the parties to this lawsuit.
Katie Simper and [Redacted] is a resident of Lewis County. Therefore, venue is proper in this Court with respect to the Defendant State of Washington pursuant to RCW 4.92.010.(1).
Katie Simper is the legal guardian of [Redacted], her [Redacted], who attends [Redacted – a school in Washington state].
Kirsten Robbins is a resident of Lewis County.
Kirsten Robbin’s [Redacted] attends [Redacted – a school in Washington State].
Jennifer Anderson is a resident of Lewis County. Her [Redacted] attends [Redacted – a school in Washington State]
The State of Washington is required by the state constitution to “make ample provision for the education of all children residing in its borders.”
Jay Inslee is the Governor of the State of Washington, and heads the Executive Branch.
IV Factual Allegations
The Governor’s Orders
In determining whether there exists a state of emergency in Washington, and whether the infringement on civil liberties is addressed at steps that remedy that state of emergency, it is imperative to review the facts about relevant conditions in the state.
As of May 3, 2020, 841 people have died of COVID-19 in the State of Washington.
Of those, 52% are over age 80; 91% over age 60. Exactly zero are under age 20.
Whether or not this constitutes a state wide emergency justifying infringements of the civil liberties of all residents must be evaluated by, among other things, comparison to the similar status of normal public health issues in the state each year.
If the usage of health care resources in 2020 is roughly identical to past years, then any year is an emergency. If the death rate in 2020 is roughly identical to past years, then any year is an emergency. If the threat to public health posed by COVID-19 is not extremely dissimilar than other threats to public health that regularly arise in the state, then “emergency” ceases to have meaning other than simply “Governor’s fiat.”
This, it is relevant to see, for example, that in 2018, 56,913, people died in the State of Washington, of which 988 died of Influenza and Pneumonia, the ninth leading cause of death in Washington.
In 2017, 57,012 people died in the State of Washington, of which 1,037 died of Influenza and Pneumonia, the ninth leading cause of death in Washington.
In 2016, 54,748 people died in the State of Washington, of which 809 died of Influenza and Pneumonia, the tenth leading cause of death in Washington.
Whether or not a state of emergency exists across the entire state of Washington, among all residents and people, requiring impositions on the civil liberties of everyone in the state, must depend on the actual nature of the asserted emergency.
If any emergency is confined to a certain small subsets of the population, the Governor’s statewide edict cannot be justified.
However, the Washington State Department of Health has thus far refused to release data on the number of COVID-19 deaths or cases among residents of nursing homes or long-term care facilities.
Looking at data from states which have been more transparent and open, it appears highly likely that the threat posed by COVID-19 in Washington is almost exclusively confined to long term care facilities and elderly, sick residents of the state.
By way of example, in the State of Illinois, there are 7,555 cases of COVID-19 at Long-Term care facilities among resident and staff, as of May 1, 2020. As of May 1, 2020, in the State of Illinois, there have been 1,082 COVID-19 deaths among residents and staff at Long-Term care facilities. As of May 3, 2020, there are a total of 61,499 cases of COVID-19 in the entire State of Illinois, and have been a total of 2,618 deaths.
By way of example, in the State of Maryland, there are 3,218 confirmed cases of COVID-19 at nursing, assisted living, and group home facilities among residents (not including prisons or jails), and there have been 525 confirmed COVID-19 deaths among residents, as of April 29, 2020. As of April29,2020, there have been 1,489 confirmed cases of COVID-19 among staff at nursing, assisted living, and group home facilities, and 8 confirmed deaths of staff. As of May 3, 2020, in the State of Maryland there have been a total of 26,408 confirmed cases of COVID-19, and 1,216 confirmed deaths. 2,144 COVID-19 cases and 519 COVID-19 confirmed deaths have been among those 80 years old or older; 5,993 COVID-19 cases, and 487 COVID-19 confirmed deaths have been among those who are between the ages of 60 and 79. There have been no confirmed deaths from COVID-19 for anyone under the age of 30, and no possible COVID-19 deaths for anyone under the age of 20.
Emerging medical consensus tracks the lack of any COVID-19 deaths among children and youth in Washington.
Study after study has confirmed that there is practically no threat to youth or children from COVID, that they have extremely low risk of transmission to adults, and when symptomatic, have generally very mild symptoms.
As Dr. Anthony Fauci has said, describing the lack of any data to support excluding children from normal activities:
“One interesting feature of this novel coronavirus pandemic is that very few children have become sick with COVID-19 compared to adults,” said NIAJD Director Anthony S. Fauci, M.D. “Is this because children are resistant to infection with SARS-CoV-2, or because they are infected but do not develop symptoms? The HEROS study will help us begin to answer these and other key questions.”
If COVID-19, as a matter of fact, poses little to no threat to children and young adults, while those same people also pose little to no threat to themselves or others, there cannot be a state of emergency justifying impositions on their civil liberties.
If, in fact, COVID-19 illnesses and deaths are almost exclusively confined to those who are older or have serious existing illnesses, there cannot be a state of emergency justifying impositions on the civil liberties of every other resident of this state of Washington.
All evidence shows that the threat of COVID-19 is focused on long term care settings.
Yet the Stat’s response has not only been overbroad, by locking down healthy and unthreatened people, it has also been slow and inadequate in those areas of greatest threat.
For example, in Pierce County with just over 40 cumulative deaths and 1400 cases, a few congregate care settings made up the bulk of concentrations of the positive cases.
As hospitals and long-term care settings realized the problem, they shifted focus with hospitals attempting to help unprepared long-term care facilities. But personal protective equipment (“PPE”) and testing has not followed.
Even last week, nursing homes, rehab facilities and adult family homes were struggling to obtain the proper PPE they need to care for their residents.
In some instances, the Department of Health has ordered a halt to testing off staff and residents at long-term care facilities for bureaucratic and paperwork reasons, not in the interest of health of staff or residents.
The DOH has found vendors to offer long-term care staff the needed training on dealing with COVID-19, but then decide to allow the vendor to charge the struggling facilities, instead of making the training available free as a matter of public health.
The DOH has fallen woefully short in guidance for staff treating person[s] in those at-risk setting[s] so that they can take the most appropriate and effective precautions to care for residents.
The state has also not disclosed which facilities have had outbreaks.
Nor has the state prioritized testing of workers in the long term care settings—in fact, it has blocked private testing in at least one instance!
Because workers in long-term care settings have the most direct contact with the highest-risk population in the state, testing them should be an imperative. Instead, the Governor has locked down the healthy population of the state while ignoring easy solutions that could address actual health risks.
Long term care works plainly have the greatest potential to spread COVID-19 from client to client or from client to home.
Worse yet, the state has not disclosed the [sic] any information regarding the comorbidities of those who have dies [sic] with COVID-19.
Minnesota, by contrast, has made clear that over 99% of deaths in the state are among people with at least one serious co-morbidity.
In the face of a virus that poses an extreme risk to a narrow subset of the population, and one which is largely confined, immobile, and readily identifiable, there can not be, as a matter of fact, a state wide emergency.
The governor has asserted otherwise.
1). Proclamation 20-25
Governor Inslee issued Proclamation 20-25 on March 23, 2020.
The Proclamation’s full title reads: “Proclamation By The Governor Amending Proclamation 20-5.”
The Proclamation’s subtitle reads: “Stay Home—Stay Healthy.”
The Proclamation identifies an earlier Proclamation issued by Governor Inslee, Proclamation 20-05, issued on February 29, 2020.
Proclamation 20-25 describes Proclamation 20-05 as “proclaiming a State of Emergency for all counties throughout the state of Washington.”
Proclamation 20-25 describes Proclamation 20-05 as having proclaimed the State of Emergency “as a result of the coronavirus disease 2019 (COVID-19) outbreak in the United States and confirmed person-to-person spread of COVID-19 in Washington State.”
Proclamation 20-25identifies amendatory Proclamations 20-06, 20-07, 20-08, 20-09, 20-10, 20-11, 20-12, 20-13, 20-14, 20-15, 20-16, 20-17, 20-18, 20-19, 20-20, 20-21, 20-22, 20-23, and 20-24.
Proclamation 20-25 describes these amendatory Proclamations as “prohibiting certain activities and waiving and suspending specified laws and regulations.”
Proclamation 20-25 describes these prohibitions, waivers and suspensions as an exercise of Governor Inslee’s emergency powers.
Proclamation 20-25 cites RCW 43.06.220 as the law authorizing Governor Inslee to exercise his emergency powers in this manner.
Proclamation 20-25 gives “the continued worldwide spread of COVID-19, its significant progression in Washington State, and the high risk it poses to our most vulnerable populations” as the rationale for this alleged exercise of Governor Inslee’s emergency powers.
Paragraph 5 of Proclamation 20-25 states:
WHEREAS, models predict that many hospitals in Washington State will reach capacity or become overwhelmed with COVID-19 patients within the next several weeks unless we substantially slow down the spread of COVID-19 throughout the state;
The Governor’s reasoning for issuing Proclamation 20-25 was that hospitals in Washington state could have become overwhelmed with COVID-19 patients within several weeks, according to models as of March 23, 2020.
The potential overwhelming of hospital resources constituted the threat to public order that justified the exercise of the governor’s emergency powers.
The family of viruses that includes COVID-19, although potentially deadly in elderly patients, particularly with comorbidities, is less dangerous to children. These viruses “seem to less commonly affect children and to cause fewer symptoms and less severe disease in this age group compared with adults, and are associated with much lower case-fatality rates.”
School closures will not only deprive children of their constitutional right to an education, but may pose independent health risks. For example, “COVID-19, via these school closures, may exacerbate the epidemic of childhood obesity and increase disparities in obesity risk.”
The Harm to Plaintiffs
[Redacted] attends [Redacted] in the [Redacted] school district.
Prior to the closure of the school resulting from Governor Inslee’s Proclamation(s), [Redacted] had learning challenges that resulted in the preparation of an IEP (Individualized education program).
The IEP was designed to insure that [Redacted] could return to meeting grade-level expectations.
Katie Simper works all day as a health care worker and is unable to supervise [Redacted] during what would be the school day.
Although the school has attempted to provide on-line and distance learning substitutes for attendance at school, they are inadequate to meet [Redacted]’s educational needs.
[Redacted] needs the supervision and encouragement that results from attendance at an actual school where teachers are present to assist [Redacted].
[Redacted] is not receiving the basic education that is his right.
[Redacted], age [Redacted], is a student at [Redacted].
[Redacted]’s mother, Kirsten Robbins, resides in a home with her extended family. There are seven children living in the house.
[Redacted] is the oldest.
Kirsten Robbins has neither the training nor the resources to provide home-schooling for [Redacted].
[Redacted] has been offered on-line and “distance learning” as a substitute for attendance at the elementary school.
[Redacted] is recommended to spend an [sic] at least an hour a day online, attempting to learn.
[Redacted] requires the supervision of teachers and other educators who can ensure that he is engaged in learning.
[Redacted] does not succeed in a non-structured environment, surrounded by younger children, and no other adult in the home (including his mother) is able to provide the structure that [Redacted] needs.
[Redacted] is not receiving the basic education that is [Redacted] right.
[Redacted] is a freshman.
[Redacted]’s parents are divorced, and he spends the weekdays with his father.
[Redacted]’s father works in construction, and is not home during the day. Additionally, his home does not have internet access.
[Redacted] therefore must attempt to cram a week of school in the over [sic] the weekends with his mother, while [Redacted] cannot have meaningful contact with his teachers, even virtually.
[Redacted] is not receiving the basic education that is [Redacted] right.
- Causes of Action
Art. IX, Sec. 1 of the Washington State Constitution imposes upon the State of Washington the “paramount duty to make ample provision for the education of all children residing within its borders . . . .”
As a result of Art. IX, Sec. 1 of the state constitution, all children in the State of Washington have a positive right to receive a basic education.
Governor Jay Inslee is the head of the Executive Branch of the government of the State of Washington.
As Governor and head of the Executive Branch, Inslee is required to comply with Art. IX, Sec.1 of the state constitution.
The Governor’s Proclamations prevent the public schools from being able to provide the education that is promised by Art. IX, Sec. 1 of the state Constitution.
The Plaintiffs are entitled to a declaration from this Court that the Governor’s Proclamation(s) closing the public schools are in violation of the state constitution[.]
Second Cause of Action: Injunctive Relief
Plaintiffs incorporate the foregoing Paragraphs as if fully restated herein.
Governor Inslee’s Proclamations ordering the closure of the public schools in Washington violate Art. IX, Sec.1 of the state constitution.
As a result of the closure of the public schools, the Plaintiffs have suffered and (unless enjoined by this Court) will continue to suffer irreparable harm to their right to an education.
Plaintiffs have no remedy at law adequate to redress the harm threatened by the continuation of the Governor’s orders.
Plaintiffs are therefore entitled to injunctive relief to prevent future harm to their right to an education.
VI Prayer for Relief
WHEREFORE, Plaintiffs pray for the following relief:
1) For a declaratory judgment that Proclamation 20-08, Proclamation 20-09, and Proclamation 20-09.1 are unconstitutional for failure to comply with Art. IX Sec. 1 of the Washington State Constitution.
2) For injunctive relief requiring Governor Inslee to terminate any current order requiring the closure of Washington schools.
3) For injunctive relief requiring that any future order closing the public schools be based on a documented risk of substantial physical harm to the students attending those schools.
4) For an award of Plaintiffs’ costs of this suit, including attorney’s fees.
5) For such other and further relief as this Court deems just and proper.
May 5, 2020 ~+~ End of File
A reciept of process was noted in the court record as of the day before yesterday and as of the time of publication I do not have a calendar of the schedule for future hearings in this case.
It is my personal view that the governor should choose his battles wisely and completely restore the right to full participation in education for all children without these restrictions, or else there is the remote possibility the Courts will find nearly the entirety of his Proclamations to be unconstitutional due to lack of foundation for the current state of emergency and garner case law that will be unfavorable to the state should future events tempt such emergency action again. As an aside, the Wisconsin Supreme Court ruled against that state’s governor in her lock down orders as being a violation of separation of powers constitutional articles.
The complaint in this case cited few examples of precedent in its arguments but that might be pertinent in of itself. At no previous time in Washington’s history has such a gross curtailment of individual freedom and liberty been exacted against the citizenry than has been wielded presently by Governor Inslee via his individual decrees under the rubric of states of emergency. I do not believe the legislature originally intended to give a governor sole authority to dictate often arbitrary rules providing for penalty of arrest for engaging in behavior that is increasingly presenting itself to be of no danger to anyone, and in some cases is actually counter-productive to health and liberty. The truth is there is no insurrection, public disorder, riot, or otherwise in every corner of the state. That is what the state of emergency laws were intended to address, not the flu or measles, (if that sounds laughable, note that back in January, Governor Inslee declared a state of emergency in two counties because of the measles….
“The existence of 26 confirmed cases in the state of Washington creates an extreme public health risk that may quickly spread to other counties.”, the governor stated.
This is not the only case, there are several others. A passenger train derails at the border of Thurston and Pierce counties. He declares a state of emergency. Hopefully a tree does not fall in the woods. That might elicit another state of emergency. The governor has made so many declarations of states of emergency during his tenure, it almost seems more of a knee jerk reaction and a need for power and drama. He loses credibility each time he does this and also diminishes the significance of what constitutes an actual emergency. It also afforded him the opportunity to make changes outside of legislation and declaring certain consitutional rights to be voidable. He has effectively appointed himself as THE government of Washington by hamstringing the legislature and making people come to him to beg for changes in his decrees so that they may engage in business or daily activity only with his permission. He even went so far as this week instructing restaurants that they may open at 50% capacity but only if they collect the names and phone numbers of all customers who visit their venue so that information can be turned over to the state if demanded.
So this is why I implore the courts decide to take the emotion and fear out of this specter of the COVID-19 subject and look at how truly damaging to free society and citizens this State of Emergency statute is codified and how it has been abused by Governor Inslee. His actions are a true measure of how vulnerable American liberty really is when threatened by opportunistic politicians who use fear and ignorance to their own advantage. He has shown how broadly tailored laws tend to invite abuse and over-reach. I do not believe the state legislature has presently the courage to limit the power of the governor’s office due to tribalism and lack of political resolve. But it needs to be done. Our state supreme court has on several occasions declared that the rights of citizens to be free of unreasonable search and seizure is greater via the state constitution than that guaranteed by the U.S. Constitution. My hope is that it will apply that same protection of liberty to all our other fundamental rights.
By Darren Smith
The views expressed in this posting are the author’s alone and not those of the blog, the host, or other weekend bloggers. As an open forum, weekend bloggers post independently without pre-approval or review. Content and any displays or art are solely their decision and responsibility.