Attorney Marc Lopez recently chatted with Attorney Joshua Claybourn about legal issues related to the current coronavirus pandemic. What follows is a lightly edited transcript of their conversation.
Marc Lopez
This is Attorney Marc Lopez, and I am on the phone with my friend, Joshua Claybourn, who I have known since law school, graduated together back in 2006, and Josh has made a name for himself throughout the state of Indiana and particularly the southern part of the state where he has represented state governments, local governments, municipalities, utility regulations, but he also has a vibrant intellectual property practice, as well. Josh, am I missing anything?
Joshua Claybourn
No, I really appreciate that. Yeah, we’ve known each other for quite a long time, and having represented many municipalities and utilities throughout the state, this intersection of governmental power and this pandemic we’re facing has really been an interesting one for me and I’m sure for many of your listeners.
Marc Lopez
Well, yeah, and so I’m getting questions nonstop now that the governor of Indiana has said, Hey, restaurants and bars are closed. I believe now at this point, gyms are closed. Or even saying keeping gatherings under, he said 50, I think the president is saying under 10. But people are asking me, How can they enforce this? Is this legal? And so I really could not think of a better person to talk to about these issues than you. If it’s okay with you, I’d like to ask some questions. Does that work?
Joshua Claybourn
That sounds great. I guess just to clarify at the outset, I am a licensed attorney here in the state of Indiana, but our conversation here is for informational purposes, not necessarily legal advice, and to the extent you plan to move forward with anything, certainly you want to seek professional counsel before you do that.
Marc Lopez
Like with all the good attorneys, the disclaimer is important. And so just like you said, this is the starting point. If you’re having issues, reach out to Josh. If he can’t help you, he will find someone who can. But do not act on this information. This is truly for informational purposes. So Josh, you can just start at the beginning, but where does the power to quarantine and close businesses come from?
Joshua Claybourn
Well, in our federal system in the United States, state governments themselves have tremendously wide latitude to regulate public health, to protect public health, and they have tremendous police powers. The federal national government does not necessarily have that. They can offer all sorts of recommendations, guidelines, and you’ve seen the Centers for Disease Control and Infection commonly called the CDC, do that. But most of what they do is simply that—recommendations. Much more beyond that would really be a stretch under the Commerce Clause. They can regulate or dictate certain things as it relates to commerce between the states, but it doesn’t give them very many police powers. Most of this is to rest with the State, and so for better or worse, our state governments have tremendous power to do nearly anything to act on behalf of the public health.
Marc Lopez
And so, Josh, just for anybody listening to this, why does the governor have so much authority in these situations?
Joshua Claybourn
Right. We have to keep in mind, we don’t live in dictatorships here in the United States. I mean, we sometimes forget that and unfortunately, increasingly so, we tend to think that the executive branch can do whatever it wants. We have different branches of government, and so any law or action that the government takes has to—in some way, shape, or form—be blessed by and passed by the legislature. So that includes any sort of action the governor might take. Virtually every action that the governor has taken in Indiana has been blessed by the legislature in some form. What they do is, if the governor declares a state of emergency, then he’s given a broad range of powers. So that is what the legislature has done. And so effectively, the governor has declared a state of emergency by executive order. So now he’s got under his power and authority all sorts of different actions he can take.
Marc Lopez
Before the governor of Indiana took action, the mayor of Indianapolis, and I know the whole state might be listening to this, but the mayor of Indianapolis made some very broad statements, closing restaurants, you have such-and-such time it could be closed. Does any mayor have that kind of authority, or where does that come from?
Joshua Claybourn
Well, once again, the state legislature has empowered many of the executives. That’s both county commissioners and mayors, town councils to the extent that they don’t have mayors—I mean, they have quite a lot of authority. And then also health departments themselves have quite a bit of independent authority to act on their own in the event that there’s been an emergency declared. Now the state government can trump those. All cities, towns, counties—they are creations of the state government. And so they only have the power and authority to act to the extent that the state government has authorized them or delegated that authority to them. At any point, the governor can trump that—can be more restrictive—and in many situations he has. But if the State does not act in a particular area or a particular way, in a situation of emergency, many mayors—as happened in Indianapolis—have the power to do that on their own, too.
Marc Lopez
So in the event of a conflict, the State controls, but the local government can do more restrictive things?
Joshua Claybourn
Correct. Generally speaking? That’s correct. Yep.
Marc Lopez
One of the questions that I’m getting, especially from Facebook friends and family is, It’s a violation of my First Amendment rights, them shutting down my church. I don’t have to honor that. Or They can’t tell me what restaurants I can or cannot go to. Telling people not to go to the restaurant or trying to limit church services—is that a violation of the First Amendment?
Joshua Claybourn
I think it would be problematic if the state government said you cannot attend church services and just left it at that. I think the reason this is going to be upheld—or would be upheld to the extent of its challenge—is because this is pretty evenly applied to gatherings of all types. Some governors may include churches as an example on a list of other things, but it’s not targeted to one particular type of view, or to one particular type of gathering. It’s relatively content neutral on how these are applied. Even in a situation where, you’ll recall this from law school, if there’s the need for strict scrutiny, which sometimes the court will apply when they’re assessing whether a law is constitutional. That rule is going to have to compel a governmental interest and be narrowly tailored to achieve that interest. I think given the circumstances of this medical emergency, that if you have a pretty generally applied ban on gatherings of a certain size, that’s going to be upheld—even under strict scrutiny—and be found to be constitutional.
Marc Lopez
So they’re not picking on churches, it’s basically everything. That’s why it survived.
Joshua Claybourn
Correct.
Marc Lopez
I got ya. Another question I’m getting, especially—I got a lot of server clients, got a lot of people that own restaurants, and they’re messaging me asking me, Hey, what happens if I don’t actually shut down?
Joshua Claybourn
Right.
Marc Lopez
What if I refuse to close my doors, and I allow people to eat inside of my restaurant. What will the State do?
Joshua Claybourn
My phone’s been blowing up about this, as well. I think we’ve got a great governor, but I think unfortunately on this particular issue, we haven’t been given the clarity we probably need. As we’ve talked about, the governor has sweeping powers in the situation of a public health emergency, and that’s been declared. So he certainly has the power to shut down gatherings, including or even directed to bars, nightclubs and restaurants. But you look at the statute that gives the governor powers—and for those following along at home, that’s Indiana Code 10-14-3-12—it applies to an executive order or a proclamation. Really what the governor did yesterday was issue a directive in the form of a press release. The issue dealing with bars and restaurants was a single sentence.
It was not a formal executive order. I think one could argue it’s not even a formal proclamation. And then further, the state law requires that to the extent you issue an executive order of proclamation exercising emergency gubernatorial powers, that then eventually has to be filed with the secretary of state and with the clerk of the city or town affected. The governor knows how to issue executive orders. He does it regularly. He did as it relates to the public health emergency, and for whatever reason, chose not to. You look at our surrounding states, Illinois for instance—they closed down their restaurants and bars, and that was done via executive order, very clearly following the statute that applies to. That was not done here. So I do think that we’re in a gray area here. If I’m advising a local municipality, I would really feel uncomfortable telling them that they have the authority to go shut down a bar or a restaurant that chooses to stay open.
I think that’s really ultimately going to be up to the State to probably enforce that. I think it’s going to require some clarity from the governor ultimately to know our path forward. I would never tell someone that go ahead and flaunt this directive. This is certainly a public health emergency. So I’m not at all suggesting that. I’m simply suggesting that we’re in a gray area here that is not very clear as to what someone’s responsibilities are—truly, legally—at the end of the day. I’m hopeful at some point the governor may clear this up. It’s possible the governor is simply, in a roundabout way, offering a strongly worded suggestion that bars and restaurants and nightclubs close down. Right? But it’s not clear there’s legal force behind that.
Marc Lopez
No, that’s super interesting. I think the fact that this is a little bit unclear, it might reflect the fact that, Hey, this is kind of a really weird time.
Joshua Claybourn
Right.
Marc Lopez
Thank you for explaining that. That has been just coming up non-stop. So for the restaurants and businesses that do follow the governor’s directive, are they going to be able to sue the State for lost earnings?
Joshua Claybourn
I do not doubt we’ll eventually see these kind of lawsuits come up. The Fifth Amendment effectively reads that private property shall not be taken for public use without just compensation. So I think the question becomes, does closing down bars and restaurants for a public health emergency constitute a public taking? The short answer is: It’s not clear. And I know people hate when lawyers say that, but it’s just not. We don’t have a lot of case law on this type of situation. Obviously if you are being deprived of an economically beneficial use from the perspective of the property owner, that’s going to be deprivation of property. But I think the State would argue that the closures are for the short-term, they’re for a justified emergency, and that they’re still offering the ability to have takeout and delivery.
So at the end of the day, any court that would review a case like that, it’s going to be a balancing test, and the owner would have to prove that the closures interfered with a reasonable investment back expectation. I think maybe it’s possible under certain circumstances. If I’m a gambling man, I’d probably say you’re not going to win that lawsuit as it stands right now, but it’s possible. There’s a 2002 case—and actually interestingly enough, Chief Justice Roberts was one of the judges on this in 2002—where they found the 24 and 8-month closure was not considered a taking, because fluctuations and property value were not considered constitutional takings. Now this is a little different. It’s not necessarily property value—it’s actual revenue. So it doesn’t apply directly, but I think it’s one of the closest analogies we have to an actual closing of a restaurant or bar. And that was not considered a taking, but the facts are different in this situation. So like I said, we just don’t have a lot of case law.
Marc Lopez
I know people get frustrated with attorneys saying, Oh, it just depends, but it really does. It really, absolutely does. Josh, I know your time is valuable. I’ve got a couple more here. Maybe just one more. What about people that are saying, Hey, these proclamations and theses directives, they’re flouting the rule of law. What’s the response to that?
Joshua Claybourn
We’re all in a little bit of uncharted territory here. I think it’s important that our government officials, our legislators, certainly follow the constitution. I think it’s important that the judicial branch ensures that we’re following that. But I think what we as other—maybe not elected—as citizens can do is be sure that we strive to follow the law and avoid effectively civil unrest. I think in times of crisis like these—we as a society or we as individuals—our character is truly revealed. And our American system thrives in large part because we respect the rule of law. When we stop doing that— when we stop respecting the norms and customs—really our way of life cripples. It’s in many ways like a spider web, one piece breaks and the whole infrastructure becomes weaker individually, buckles, and breaks, and so it’s up to each of us, I think, to ensure that we are being kind to one another, that we assist one another, and that we always follow the rule of law, because I think there are few things more important to our society, success, and longevity than that.
Marc Lopez
Absolutely. We’re both attorneys, and we have a duty to uphold the Constitution. Just hearing you say that, man, gives me tingles, because you’re obviously very passionate about that and it’s very well said. Josh, are there any parting points that—anyone listening, you want them to take away from this?
Joshua Claybourn
No, I really appreciate the opportunity to chat. I think we can all hope that this is a short-term situation. This is obviously a historic time. I think you could argue this is certainly one of—if not the most historic event in our lifetime, and it’s important we keep a clear, sane head as we get through it together.
Marc Lopez
Perfect. Hey, man, I really do appreciate it. Anything you ever need, let us know. Okay?
Joshua Claybourn
All right. We’ll chat soon.
