Governor Kim Reynolds continues to resist calls from local government leaders to issue a statewide shelter-in-place order. She confirmed on March 30 she doesn’t plan to give cities or counties the authority to restrict public movements in their own jurisdictions.

Her stance ensures Reynolds will be held responsible if novel coronavirus (COVID-19) infections spiral out of control in any part of Iowa.

ATTORNEY GENERAL SAYS IT’S THE GOVERNOR’S CALL

Early last week, mayors of three large Iowa cities urged Reynolds to issue a statewide shelter-in-place order. The governor told reporters on March 23, “We are working to help provide the resources and the metrics to our local officials so they can make those decisions [….] They do have the authority to do that.”

The Iowa Attorney General’s office took a different view. In a memo made public on March 26 and enclosed below as Appendix 1, the state’s lawyers concluded,

While cities and counties have police powers to protect the health and safety of their citizens, the State has the authority to declare and coordinate the response to a public health disaster. This includes the power of the Governor to sub-delegate administrative authority to cities and counties, including the power to restrict movement within communities by these local authorities. This power also would allow the Governor discretion to retain such powers and not delegate this authority to cities or counties.

Iowa Code Section 331.301 defines the powers of county governments to “preserve and improve the peace, safety, welfare, comfort and convenience of their residents,” and Section 364.1 does the same for city governments. But in the attorney general’s view, state law provides “authority for cities and counties to act to protect the safety of the residents of their communities yet require[s] cities and counties to yield where the powers are inconsistent with powers of the state.”

During a March 30 news conference, Beth Malicki of KCRG-TV in Cedar Rapids asked Reynolds whether she is considering delegating to municipalities or counties the ability to issue their own shelter-in-place orders. The governor responded,

At this time, no. We’re going to continue to do what I’m doing, with basing the data on the metrics, looking at communities and counties and even regions. So at this time I think it’s the best strategically for us to move forward in that manner. So we’re going to continue to approach it from that perspective.

The latest official figures indicate Iowa has 497 confirmed COVID-19 cases, with the highest numbers in Linn County (90), Polk County (76), and Johnson County (73).

JOHNSON COUNTY FORMALLY REQUESTS AUTHORITY

City and county leaders in Johnson and Linn counties previously asked Reynolds to take statewide action to order Iowans to stay at home.

The governor has argued that her actions to close many types of establishments, along with her administration’s social distancing messages, accomplish the same goals a shelter-in-place order would, without risking damage to essential supply chains. To support her position, Reynolds has cited public comments from Dr. Brooks Jackson, dean of the University of Iowa’s medical school, and Sean Williams, president and CEO of Mercy Iowa City.

Other Johnson County experts, such as University of Iowa infectious disease specialist and epidemiologist Eli Perencevich, have said a shelter-in-place order is needed “to drive down community transmission,” since “going halfway” for the last two weeks “hasn’t moved the needle.”

It would not take a worst-case scenario for COVID-19 patients needing critical care to exceed the intensive care unit capacity of major Iowa hospitals.

Johnson County’s five supervisors voted unanimously on March 30 to formally request greater powers. Their letter to Reynolds, signed by board chair Rod Sullivan, noted that governors of 27 other states, including nearby Minnesota, Wisconsin, Illinois, Michigan, and Ohio, have ordered residents to stay home.

If you are not ready to issue a state-wide order at this time, I am requesting that you delegate authority to counties to issue shelter-in-place orders. This will allow individual communities that are experiencing higher levels of COVID-19 infection to control the spread of the virus locally. As you know, Johnson County is the epicenter of this pandemic in Iowa and we are in need of additional tools to effectively fight this virus.

Zachary Oren-Smith reported for the Iowa City Press-Citizen that the supervisors don’t expect Reynolds to give them what they’re seeking. Sullivan noted the governor hasn’t sought input from him during this crisis.

“They’ve talked about all this communication that is taking place,” Sullivan said. According to him, the one conversation he’s had with the governor’s office was a two-minute check-in with a staffer. “Basically, she said she had it under control. I think she says nobody has told her what else she could be doing. Well, I haven’t been given an opportunity.”

DEMOCRATS IN CONGRESS FAVOR STATEWIDE ACTION

The three Democrats who represent Iowa in the U.S. House have called on Reynolds to do more to keep Iowans at home. Representative Abby Finkenauer was the first to write; most of the Iowans who have died of COVID-19 infections are her constituents in the first district. Excerpts from her March 27 letter, enclosed below as Appendix 2:

Older Americans are more likely to become seriously ill as the result of coronavirus and with 17% of Iowans over the age of 65, this outbreak has the potential to become far worse. Already, there are concerns about the availability of personal protective equipment, inpatient beds, and critical medical supplies in our state. A rapid rise in cases could quickly overwhelm our health care system. […]

A stay-at-home order will not only help protect our health care providers and other essential frontline workers, but also Iowans who work in our state’s most important industries. Iowa plays a critical role in our nation’s economy as a major player in the domestic food supply chain. […] If we fail to control the spread of coronavirus and cases in Iowa continue to multiply, I am concerned not only about the long-term effects on our local economies but also the immediate impact on food and agriculture production. […]

I stand ready to fight for whatever resources you require to help our state navigate this crisis, and I recognize that additional support will be needed while a stay-at-home order is in place. However, I strongly believe that any assistance provided to help our businesses and workers recover financially from a stay-at-home order will be far less than the resources that may be needed if the virus continues to spread.

Representative Cindy Axne (IA-03) wrote to Reynolds on March 30. Polk County, the population center of the district she represents, has the third-highest number of confirmed COVID-19 infections. Excerpts from Axne’s letter, which you can read in full below:

As you’ve noted in your public availabilities and in our conversations, the steps already taken by your office will help slow the spread of this disease. But as the President extends nationwide social distancing guidance until the end of April, and nearby states take steps to more drastically limit residents from leaving their homes, Iowa also needs to take the strongest possible approach to control further transmission.

A stay-at-home order will require, instead of simply recommending, one of the best possible methods that Iowa families can employ to help stop the spread of coronavirus. In my conversations with public health experts across my district, their advice also confirms that such an order would help reduce the burden that further hospitalizations would put on Iowa’s hospitals and health care professionals.

Nearly 20% of Iowa’s citizens are over the age of 65, making Iowa particularly vulnerable to cases of coronavirus that will lead to hospitalizations – which could overwhelm our health systems. You and I are both fully aware of the stories of shortages of personal protective equipment (PPE) and other critical medical supplies in our state. If the state’s public health experts are predicting an imminent spike already, why then would we not consider a step that would keep all but the most essential workers at home to avoid deepening these shortages over the next month?

By not employing every tool in our arsenal to slow the spread of this virus – especially those that would simply codify what our offices have been recommending already – we risk elongating the time that our schools, businesses, and flagship events will have to remain closed. Iowa’s workers, business owners, farmers, teachers, and next generation of citizens cannot afford that.

Representative Dave Loebsack (IA-02), whose district includes Johnson County, has not publicly called for a stay-at-home order. But his communications director Joe Hand told Bleeding Heartland on March 31 that Loebsack “has spoken with Governor Reynolds and personally communicated that he supports such an order.”

DIFFERING VIEWS ON THE ATTORNEY GENERAL’S OPINION

I sought comment from some lawyers about the memo from the Attorney General’s office. Was it accurate to say local authorities cannot issue their own shelter-in-place orders without the governor’s permission?

Professor Hunter Clark teaches state and local government law at Drake Law School and has extensive experience with municipal law, having served as general counsel to the Chief Financial Officer for the District of Columbia. He told Bleeding Heartland on March 30 the memo looks “spot on,” assuming that the governor has proclaimed a “state of disaster emergency.” (Reynolds issued her first State of Public Health Disaster Emergency order on March 17.)

Clark noted that he is voluntarily sheltering at home, so can’t consult law books and other materials in his office. “But my immediate impression is that the AG is right on the law.”

Gary Dickey, who served as legal counsel for Governor Tom Vilsack, sees the issue differently. In a March 27 email to Bleeding Heartland, he explained,

I disagree with the Governor and Attorney General’s legal opinion that municipalities cannot issue their own “shelter-in-place” orders. The Iowa Supreme Court has explained that “[u]under home rule, a city has the power to enact an ordinance on a matter which is also the subject of statute if the ordinance and statute can be harmonized and reconciled.” Council Bluffs v. Cain, 342 N.W.2d 810, 812 (Iowa 1983). A municipal ordinance, however, “is preempted by state law when the ordinance invades an area of law reserved by the legislature for itself.” Des Moines v. Gruen, 457 N.W.2d 340, 342 (Iowa 1990). The test is whether the ordinance (1) prohibits an act permitted by state law or (2) permits an act prohibited by state law. Id. at 343. In other words, if “the ordinance irreconcilably conflicts with the statute” then it is preempted. Worth County Friends of Agric. V. Worth County, 688 N.W.2d 257, 263 (Iowa 2004).

Here, municipalities have the inherent authority under home rule to legislate the movement of people within their territorial limits pursuant to their police powers. For example, a municipality may enact a curfew or restrict the activities occurring on certain properties via zoning. The Iowa General Assembly has the same legislative authority pursuant to its police powers. If there is a conflict, the Cain rule applies, and state law preempts municipal law.

I am unaware of any state law that would conflict with a municipal shelter-in-place ordinance—though such an ordinance might subject to other constitutional limitations such as due process. I do not think the Governor’s disaster emergency proclamation changes the analysis. By enacting the emergency management and security act in chapter 29C of the Iowa Code, the Iowa General Assembly recognized that may come a time during a public disorder or disaster emergency in which it would not have time to enact legislative policy through the normal process. Accordingly, the General Assembly delegated to the Governor certain legislative authority when the conditions of a public disorder or emergency disaster are met. And, it allowed the Governor to delegate to municipalities during disaster emergencies certain legislative authority they would not otherwise possess under home rule—i.e. using state resources and suspending state regulations. Nothing in chapter 29C suggests the General Assembly intended to usurp municipalities’ police powers and place them in the hands of the Governor during a disaster emergency. The whole chapter speaks in terms of expanding legislative authority in times of crisis to meet the demands of the emergency; not contracting authority.

I think the Governor’s authority under chapter 29C and municipalities’ police powers under home rule easily can be harmonized. Under chapter 29C, during a disaster emergency, the Governor may issue a proclamation that sets a statewide shelter-in-place requirement. In the absence of such proclamation, a municipality may issue a shelter-in-place requirement pursuant to its inherent police powers. Indeed, the Iowa General Assembly expressly authorizes counties to do this:

“A county shall not set standards and requirements which are lower or less stringent than those imposed by state law, but may set standards and requirements which are higher or more stringent than those imposed by state law, unless a state law provides otherwise.”

Iowa Code section 331.301(6)(a) (emphasis added). Because no state law that “provides otherwise,” I would conclude that a municipality is free to issue a shelter-in-place ordinance. Id.

It is also important to note that this is not a case in which the legislature has prohibited local legislation by statutory language (“express preemption”). To the contrary, under the “statement of policy” provision of Chapter 29C, the Iowa General Assembly expressly identified as one of the purposes of chapter 29C to “confer upon the governor and upon the executive heads or governing bodies of the political subdivisions of the state the emergency powers” in the chapter. Iowa Code section 29C.1(2) (emphasis added). From this language, I think it is clear the legislature did not intend to preempt the emergency powers of municipalities.

I think the Attorney General’s opinion presents a political problem for the Governor. If she fails to issue a shelter-in-place order, and Iowa City becomes a hot spot, she will shoulder the blame for failing to act. If she issues a statewide shelter-in-place, and we do not experience an outbreak, then she will be accused of overreacting. It would have been far better for her politically if the Attorney General had concluded that municipalities are free to make their own shelter-in-place determinations.

Unless and until some local government authority acts alone, daring the state to take them to court, the attorney general’s view will stand.

Reasonable minds may differ on the best way governments can slow the spread of COVID-19, but all should agree on one thing now: the buck stops with Reynolds. If infections begin to multiply more rapidly here than in states where governors moved more aggressively to restrict public movements, Iowans will rightly ask why Reynolds didn’t let local officials take steps they felt were needed to protect their own communities.

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Appendix 1: Legal opinion from the Iowa Attorney General’s office

Re: The question of the legal authority of counties and cities to enact local measures to require citizens of their jurisdictions to shelter in place during the current health public health disaster emergency.

County and City Home Rules Powers:

Article III, Section 38A and Section 39A contain the City and County Home Rule provisions in the Iowa Constitution. The powers granted cities and counties under these constitutional amendments are to determine their local affairs and government, not inconsistent with the laws of the General Assembly, except that they shall not have power to levy any tax unless expressly authorized by the general assembly. Counties are also constrained in their home rule powers if that power conflicts with the power of a city, providing a city power will prevail within its jurisdiction.

When an ordinance prohibits an act permitted by a statute, or permits an act prohibited by a statute, the ordinance is considered inconsistent with state law and is preempted. See City of Des Moines v. Gruen, 457 N.W.2d 340, 342 (Iowa 1990). Implied preemption occurs when the legislature has covered a subject by statutes in such a manner as to demonstrate a legislative intention that the field shall be preempted by state law.

The powers exercised by cities under the Home Rule Amendments have been generally categorized as “police powers”. These include the power of cities and counties to protect rights, privileges, and property of the city and county and to preserve and improve the peace, safety, welfare, comfort and convenience of their residents. Iowa Code Section 331.301 (county) and Iowa Code Section 364.1 (City). These powers may be exercised by cities and counties subject to limitations expressly imposed by a state law, and are barred if such actions are irreconcilable with state law. Under Iowa Code Sections 331.301 and 364.3, City mayors are further empowered to govern the city by proclamation during a time of emergency or public danger. Iowa Code Section 372.14.

These authorities generally indicate authority for cities and counties to act to protect the safety of the residents of their communities yet require cities and counties to yield where the powers are inconsistent with powers of the state.

State Powers

A public health disaster is defined in Iowa law as a state of disaster emergency proclaimed by the Governor in consultation with the Department of Public Health for a disaster that involves an imminent threat of a health condition caused by the appearance of a novel infectious agent and that poses a high probability of a large number of serious health consequences. Iowa Code § 135.140(6). During a public health disaster, the Governor and the Department of Public Health have broad legal authority to take all reasonable measures necessary to prevent the transmission of the virus and to prevent, control, and treat the infectious disease. These legal authorities are contained in part at Iowa Code sections 135.144 and 29C.6. These authorities include the powers to “control ingress and egress to and from a disaster area, the movement of persons within the area, and the occupancy of premises in such area.” Iowa Code § 29C.6(15).

Iowa Code Section 29C.6 (8) allows the Governor to delegate and sub-delegate any administrative authority under the Emergency Management Chapter. This indicates the Governor may delegate powers under emergency powers under that section to local authorities to address the current public health emergency, including the power to place restrictions on movement within the communities. This likewise indicates the Governor may choose not to delegate this authority to local agencies.

Conclusion: While cities and counties have police powers to protect the health and safety of their citizens, the State has the authority to declare and coordinate the response to a public health disaster. This includes the power of the Governor to sub-delegate administrative authority to cities and counties, including the power to restrict movement within communities by these local authorities. This power also would allow the Governor discretion to retain such powers and not delegate this authority to cities or counties.

Appendix 2: Full text of March 27 letter from U.S. Representative Abby Finkenauer to Reynolds

Dear Governor Reynolds,

I write to express concern regarding the growing outbreak of coronavirus within our state and I ask again that you implement a statewide stay-at-home order. There is no doubt that this global pandemic has reached Iowa, with more and more people testing positive across the state every day. I appreciate your efforts so far to manage this crisis and we must take this next step to protect our communities. Thank you for your time and willingness to discuss the issue, but I hope you will reconsider your decision and move forward with a stay-at-home order.

In the short time since [we] spoke yesterday morning, two more of my constituents have died from coronavirus, bringing the total number of deaths to three. After consulting with medical professionals, especially those in the Dubuque area where we saw the first tragic passing of a coronavirus patient, I feel even more strongly that we must take every precaution to protect our families and the essential workers who our state and the nation rely on.

Older Americans are more likely to become seriously ill as the result of coronavirus and with 17% of Iowans over the age of 65, this outbreak has the potential to become far worse. Already, there are concerns about the availability of personal protective equipment, inpatient beds, and critical medical supplies in our state. A rapid rise in cases could quickly overwhelm our health care system. The recently confirmed cases at a Cedar Rapids nursing home, which include four patients and two employees, underscore the need to protect our most vulnerable and to ensure Iowans on the frontline of our response have the safest environment to work in while caring for our friends and neighbors.

A stay-at-home order will not only help protect our health care providers and other essential frontline workers, but also Iowans who work in our state’s most important industries. Iowa plays a critical role in our nation’s economy as a major player in the domestic food supply chain. From our farmers in the field to food processors on the factory line to those stocking the shelves at our local grocery stores, Americans—both urban and rural— are connected to our state’s food system. If we fail to control the spread of coronavirus and cases in Iowa continue to multiply, I am concerned not only about the long-term effects on our local economies but also the immediate impact on food and agriculture production. By protecting our essential employees and businesses, we are protecting the future of our state.

We must put the health and safety of Iowa families above all else at this time. I stand ready to fight for whatever resources you require to help our state navigate this crisis, and I recognize that additional support will be needed while a stay-at-home order is in place. However, I strongly believe that any assistance provided to help our businesses and workers recover financially from a stay-at-home order will be far less than the resources that may be needed if the virus continues to spread.

A stay-at-home order will save lives and protect the economic interests of our state in the long-term, and I hope you will move forward with implementing such an order. Thank you for your ongoing efforts during this emergency, and I look forward to continuing to work together to protect Iowa communities and their health.

Regards,

Appendix 3: Full text of March 30 letter from U.S. Representative Cindy Axne to Reynolds

Dear Governor Reynolds,

I am writing to express my concern regarding the deepening consequences of the coronavirus outbreak in Iowa. While I am grateful for your efforts and the efforts of the State of Iowa to mitigate the burden of this crisis, the Department of Public Health’s prediction of a ‘peak’ in cases coming in a matter of weeks confirms the necessity of more compulsory restrictions. It is time to implement a statewide stay-at-home order.

The past few days have brought the hardest news so far of this pandemic in Iowa. We’ve lost six of Iowa’s own and seen rising confirmations of cases – quadrupling Iowa’s totals in a week. While this rise does also reflect the increase in available testing, it does not diminish the clarity provided by the climbing tolls. This virus is ravaging our nation’s health systems, and Iowa is no exception.

As you’ve noted in your public availabilities and in our conversations, the steps already taken by your office will help slow the spread of this disease. But as the President extends nationwide social distancing guidance until the end of April, and nearby states take steps to more drastically limit residents from leaving their homes, Iowa also needs to take the strongest possible approach to control further transmission.
A stay-at-home order will require, instead of simply recommending, one of the best possible methods that Iowa families can employ to help stop the spread of coronavirus. In my conversations with public health experts across my district, their advice also confirms that such an order would help reduce the burden that further hospitalizations would put on Iowa’s hospitals and health care professionals.

Nearly 20% of Iowa’s citizens are over the age of 65, making Iowa particularly vulnerable to cases of coronavirus that will lead to hospitalizations – which could overwhelm our health systems. You and I are both fully aware of the stories of shortages of personal protective equipment (PPE) and other critical medical supplies in our state. If the state’s public health experts are predicting an imminent spike already, why then would we not consider a step that would keep all but the most essential workers at home to avoid deepening these shortages over the next month?

By not employing every tool in our arsenal to slow the spread of this virus – especially those that would simply codify what our offices have been recommending already – we risk elongating the time that our schools, businesses, and flagship events will have to remain closed. Iowa’s workers, business owners, farmers, teachers, and next generation of citizens cannot afford that.

I know that your work in this matter takes the health and safety of Iowa families seriously, and that your policies have been made within constant reevaluations of the reality on the ground. As a spike in cases in Iowa looms, I ask you that you reconsider issuing a stay-at-home order. It will protect the health and well-being of our families, save lives, and protect our state’s future prosperity.

I am committed to working with you to secure any and all resources available to our state during this crisis. I’m confident that those resources, coupled with the right policies and the resiliency of our citizens, will carry us through this crisis.

Sincerely,

Top image: Governor Kim Reynolds speaks during her March 30 news conference. Photo by Zach Boyden-Holms/Des Moines Register, pool.