CASPER, Wyo. — The Wyoming Senate passed Senate File 80 on third reading during their Wednesday, March 10 floor session. The legislation would place new limits on public health orders and give counties the ability to opt out of statewide public health orders or close public places to protect public health during emergencies.
While the effort passed the Senate on a vote of 21-9, some senators expressed concerns that the legislation may violate provisions of the Wyoming Constitution, may give the legislature authority that should lie with the executive branch and could result in more deaths by weakening what public health orders can do.
“Let’s look at this bill carefully,” Sen. Charles Scott (Natrona County said. “This is an economic development bill for the undertakers…that’s not one we ought to pass.”
“The real problem I have here is that [if] we get a much more deadly outbreak in the future, these public health orders are going to become a lot more important. And they are going to need to last longer.”
The legislation would limit the length a public health order could be imposed by the state health officer to a maximum of 60 days “unless the order is ratified by the legislature through legislative order, with each house voting separately.” The legislation originally proposed limiting health orders to 30 days, but a third reading amendment stretched this to 60 days.
County or municipal health orders would be limited to 30 days (amended up from 15 days under the original draft) unless ratified by the county commissioners or governing body of a municipality.
Under existing Wyoming law, the state health officer can issue public health orders during an emergency without ratification from the legislature and local health officers can issues orders with approval from the state health officers but without approval from county or city governing bodies.
Scott said it is appropriate that the authority to issue health orders lie with the executive branch (i.e. the state health officer appointed by the governor) and that the legislature does not have the expertise needed to decide what public health orders are appropriate.
He said that if the proposed legislation had been in effect when the COVID-19 pandemic reached Wyoming, the legislature “would have removed some of the necessary public health orders way earlier than we should have and we would have killed a bunch more people. Not a tremendous percentage but a significant number.”
Scott said that future pandemics could be much more deadly than COVID-19. He added that he thinks State Health Officer Dr. Alexia Harrist “did the right things” in terms of the public health orders that were enacted in response to COVID-19.
While some people may not have liked the restrictions, Scott argued they were necessary. He said that the proposed legislation would lead to a situation in which the legislature would be “invading the executive branch function.”
“This bill is dangerous and I would hope we would defeat it,” he said.
The amendment adopted by the Senate on third reading was proposed by Sen. Troy McKeown (Campbell County) who is one of the sponsors of the legislation.
In addition to changing the time limits on public health orders, the amendment modifies other aspects of the legislation such as allowing public health orders to become effective “immediately if a delay of forty eight (48) hours will result in immediate and life-threatening physical harm, exposure or transmission beyond the existing affected area.”
The original language of the bill would prevent public health orders from taking effect until 48 hours of public notice had been given. The legislation would require the the governor and the department of health to provide “an opportunity for public comment through written and electronic submissions” in regard to a public health order.
Another aspect of the amendment would authorize the legislature to convene via electronic means “or in another place or places other than the seat of government if the public health emergency necessitates.”
“If the legislature meets via electronic means or at a place or places other than the seat of government, the legislative session shall be anchored at the seat of government by at least the presiding officer or acting presiding officer of each house of the legislature,” the amendment reads.
That aspect of the legislation would allow the legislature to meet to decide whether to ratify public health orders beyond the 60 day limit.
Sen. Fred Baldwin (Lincoln, Sublette, Sweetwater, Uinta) said that the amendment brought him to a place where he could support the bill. He said that he expects the country will be impacted by more pandemics or health emergencies moving forward which could be worse than the COVID pandemic.
Minority Floor Leader Chris Rothfuss (Albany) said that he was in favor of the amendment, though he opposed the overall bill. He said the amendment allowing the legislature to meet electronically was “a really good amendment.”
However, Rothfuss questioned whether the legislature has the constitutional authority to call itself into special session.
Sen. Cale Case (Fremont) said he also had questions about the constitutionality of the legislation in terms of the legislature’s authority to call itself into special session.
The Wyoming Constitution states the followiing in regard to legislative sessions:
§007.Time and place of sessions.
(a) The legislature shall meet at the seat of government at twelve o’clock noon, on the second Tuesday of January of the odd-numbered years for general and budget session and may meet on the second Tuesday of January of the even-numbered years for budget session, and at other times when convened by the governor or upon call of the legislature as herein provided. The governor by proclamation may also, in times of war or grave emergency by law defined, temporarily convene the legislature at a place or places other than the seat of government. The legislature may convene a special session not to last longer than twenty (20) working days as follows:
(i) Upon written request to the presiding officer of each house of the legislature by a majority of the elected members of each house, the legislature shall convene in special session; or
(ii) The presiding officers of each house shall also jointly call a special session for the purpose of resolving a challenge or a dispute of any kind in the determination of the presidential electors.
Case said that the legislature’s 2020 special session after the pandemic arrived was constitutional because the governor called the legislature into session. The constitution allows the governor to call a special session “at a place or places other than the seat of government.”
“Without the governor calling us in, we’re limited to the seat of government,” Case said.
He added that he thinks the legislation would also be an overreach in terms of the legislature’s authority and may violate the separation of powers.
“Is that even a proper function of the legislature?” he asked.
Case noted that there is other legislation being proposed in response to the COVID-19 pandemic that may provide better solutions to the issues Senate File 80 is trying to address.
He said that legislation which didn’t involve the legislature performing an executive function would be preferrable.
Rothfuss said that the legislature’s role is to write laws: “We only get to write laws. we don’t implement them, we don’t interpret them.” He said that the legislation was problematic to him because it would ask the legislature to make decisions without the proper expertise “in time of crisis.”
Sen. Jeff Wasserburger (Campbell, Converse) expressed concern about two aspects of the legislation. First, he said that he generally resists the idea of the legislature convening for special sessions at that the bill might be a step toward a full-time legislature.
He also noted that some hospitals in the state were close to being overwhelmed in terms of being able to handle COVID-19 patients and that if the legislature had acted to end some of the public health orders too soon, “the deaths in the State of Wyoming would have increased.”
Sen. Bill Landen (Natrona) said he had concerns about the legislature making decisions about health orders.
“There is only about one senator that I would trust to tell me what the heck is going on with a public health order, pandemic, serious situation where we’ve got people in jeopardy for their lives and whatever,” he said. “We don’t know health. We’re not the experts.”
Senate Vice President Larry Hicks (Albany, Carbon, Sweetwater) said that the legislature pass laws all the time in areas where they don’t have specific expertise, relying on testimony from experts to help guide their decision making process.
He said that while Senate File 80 may not be perfect, the Senate should move it forward: “Don’t throw the good out for the sake of the perfect.”
Sen. Dave Kinskey (Sheridan, Johnson) said that he thought the legislation was necessary because the state’s existing law might be subject to constitutional challenges since state law doesn’t specify a maximum timeline in which public health orders can remain in effect.
He said that existing law may have given too much power to the executive branch by leaving out such limitations on what health orders can do.
Sen. R.J. Kost (Big Horn, Park) said that he had some concern that the legislation was drafted in reaction to the COVID pandemic and that it might not be well crafted to address unknown future crises the state may face.
Kost said he wasn’t opposed to legislation modifying existing health order rules: “I’m just saying we need to think about what the implications and the unintended circumstances are.”
Sen. Cheri Steinmetz (Goshen, Niobrara, Weston) said that she supoorts the legislation in part because it would give more local control since counties could opt out of statewide health orders.
Sen. Drew Perkins (Natrona) said that he thinks Govenor Mark Gordon “did a very great job” in terms of Wyoming’s response to the COVID pandemic. Perkins said he supports the legislation since it tries to incorporate some lessons learned through the COVID-19 pandemic.
He said, however, that the legislation might not have as significant an effect as supporters hope. Perkins noted that corporate stores and other businesses would still be able to enact policies on their own private properties (such as mask requirements) even if state or local health orders were not in effect.
Perkins said he also supports the idea of ensuring citizen oversight over things like health orders, drawing a comparison to civilian oversight of the military.
While he acknowledged legislators are not medical experts, Perkins said they could help “balance policy considerations” stemming from public health orders if the legislation were to become law.
McKeown said he thought the legislation was important because he thinks the legislature is responsible for decisions made by health officers since the legislature grants their authority to issue public health orders.
‘He also said that imperfections in the proposal shouldn’t be a reason not to pass it: “A bad plan executed well is better than a good plan poorly executed.”
The Senate’s third reading vote of 21-9 on Senate File 80 was as follows:
- Ayes: BALDWIN, BITEMAN, BONER, BOUCHARD, COOPER, DOCKSTADER, DRISKILL, ELLIS, FRENCH, HICKS, HUTCHINGS, JAMES, KINSKEY, KOLB, MCKEOWN, NETHERCOTT, PAPPAS, PERKINS, SALAZAR, SCHULER, STEINMETZ
- Nays: ANDERSON, CASE, FURPHY, GIERAU, KOST, LANDEN, ROTHFUSS, SCOTT, WASSERBURGER
The legislation will move to the House of Representatives for consideration.
