The state emergency orders over COVID-19 should be ended and local health districts allowed to decide what steps their communities should take in response to the virus, an attorney for some Chelan County residents argued Thursday in a court in Wenatchee.
The emergency orders infringe on constitutional liberties, and every day they continue “represents irreparable harm,” Joel Ard told Chelan County Superior Court Judge Kristin Ferrera.
But attorneys for the state countered a statewide emergency still exists, and Gov. Jay Inslee is basing his orders on science, data and the advice of medical experts. Ard and his clients haven’t produced any experts to prove there isn’t an emergency, Deputy Solicitor General Jeffrey Even said.
“The governor’s interest is in protecting the lives and health of all the people across the state,” Even said.
Ard conceded Inslee was right to declare a state emergency in March, when there were fears COVID-19 would spread so fast that it would overwhelm the hospitals.
“That has undoubtedly passed,” he said. “There is no doubt that the hospital system will be overwhelmed no matter what we do.”
Instead of operating under state emergency orders, which should be short-term, individual counties should be under the control of their local health districts, Ard said. That system is described in state statutes for responding to a flu pandemic.
“Isn’t flu a specific scientific term?” Ferrera asked, noting that coronavirus is a different disease.
The court should use the nonscientific meaning of flu, which is used to describe symptoms common to COVID-19, Ard argued.
No, it should stick with the scientific term, Even countered. The statute Ard cited wasn’t meant to create a “piecemeal” system of dealing with a statewide pandemic, he said.
Inslee has made changes in the orders based on evolving scientific and epidemiological evidence, Even said, and the emergency is solely about hospital capacity.
“The virus remains highly contagious,” he said. “The governor has introduced geographical nuance.”
But in the nuance that let some counties move to the next phase of opening their economies, some rural counties like Chelan and Douglas are grouped with some urban counties like King and Pierce, Ferrera said. Local testing is turning up more people who are positive but not showing symptoms of the disease, she said. Isn’t that a sign that they have more positives because they are doing more testing?
Asymptomatic people can still spread the disease, Even replied, and it’s not just the number of positive tests but the rate of positive results among all people tested. Under that standard, Douglas and Chelan are at a higher rate than King County.
The court shouldn’t try to micromanage the governor during a statewide emergency, he argued.
“How long does an emergency last?” Ferrera asked. “At some point, is it something different than an emergency?”
“Emergencies are not time limited,” he replied. “Nobody claims it could be perpetual.”
The judge noted the Legislature could call itself into session if it disagreed with what Inslee is doing but so far has not.
If Inslee doesn’t like the statute on local districts dealing with the flu, he should call the Legislature into session to change it, Ard said. “You can’t call it an emergency because you don’t like existing law.”
Ferrera gave both sides time to present additional documentation for their arguments. She said she’d rule on Ard’s request for a temporary restraining order against the emergency order and a separate request to move the case to Thurston County on Monday afternoon.
Subscribe to the Coronavirus newsletter
Get the day’s latest Coronavirus news delivered to your inbox by subscribing to our newsletter.