Local Authority for PPE, Part 3: Efficacy & Enforcement

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Home Rule allows for local control. Cities have constitutional and statutory powers and counties have constitutional and statutory powers over their respective affairs. This is limited by state preemption, expressed or implied (see Goodell v. Humboldt County; City of Des Moines v. Gruen), but a “high degree of expression” is required for preemption. If not preempted, state and local rules can cover similar subjects if the rules can be harmonized.

The governor has authority to proclaim a disaster emergency, including a “public health disaster.” Counties and cities each are expressly charged by law with protecting the “heath, safety, [and] welfare” of their residents. (See Iowa Code §§ 331.301, 364.1.) Meanwhile, far from keeping the state the exclusive repository of disaster powers, the legislature created local emergency management commissions and has mandated local cooperation. The legislature has empowered mayors to govern by proclamation. The legislature also vests in county boards of health “jurisdiction over public health matters in the county” and authority to enforce state health laws, rules, and orders and to make and enforce its own reasonable rules not inconsistent with state law and rules. The explicit policy of the State of Iowa is: “[t]o confer upon the governor and upon the executive heads or governing bodies of the political subdivisions of the state the emergency powers” in chapter 29C and “[t]o provide for the rendering of mutual aid among the political subdivisions.”

Nowhere in any of these statutes does the General Assembly say that a local government has no power to respond to a disaster, health or otherwise. Nowhere does the General Assembly say that the state has exclusive authority over a disaster, health or otherwise. Indeed, one would have to wonder whether your legislators had all their faculties if they had awarded the state all of the authority over a disaster response. This seems, however, to be the position of the governor and attorney general.

One proposed method of dealing with the COVID-19 pandemic is mandating the use of personal protective equipment (PPE), specifically a face mask. I submit that the only real fighting issue in the local PPE mandate debate is whether the mere existence of Iowa Code chapter 29C or the law coupled with the governor’s exercise of the public health disaster proclamation powers under Iowa Code chapter 29C impliedly preempts any local government regulation targeted at the prevention of disease transmission. While the attorney general suggests otherwise, there is nothing in the law that clearly preempts local regulation, and there nothing about having a local regulation that would be irreconcilable with a state law. I have argued, therefore, that cities and counties have Home Rule authority to enact PPE policies.

There is, however, a lot of dialog about the efficacy and enforceability of a local policy. Here are several of the arguments out there and some thoughts on those arguments:

Argument: Taking local action is contrary to the governor’s authority, and local governments that act contrary to the state or governor are going to be in legal jeopardy.

First, the idea that local rules are contrary to gubernatorial authority is really the core of the argument and incorrectly, in my view, assumes the governor’s authority is exclusive. Second, so what? If the governor decided she needed to seek an injunction against a local government and a court gives us an answer, it would be nice to have an answer, especially if it is reasoned and based on well briefed arguments and precedent. Let’s find out. The courts don’t act on hypotheticals. There needs to be an actual controversy to get a ruling. The idea that there is going to be some flood of litigation is a bogey man put out there to scare the policy makers away from taking a position that you don’t like. It only takes one ruling. The argument is designed to make the non-lawyers believe it is going to cost millions and millions of dollars to get an answer. That is all nonsense. Frankly, my guess is that the governor has no interest in challenging local regulations. It works out great for the governor if local government takes action and the transmission rates go down. If the governor wants that definitive answer, I couldn’t blame her.

Argument: Local action isn’t enforceable because the governor has all the authority and hasn’t delegated it.

This is the same as the previous argument. It presumes that the governor’s authority is total. That’s the question, and again, so what? If someone gets cited for refusing to comply and fights the citation in court, one of two things will happen: Either the local rule gets affirmed or the local rule gets thrown out. There is, at least, the prospect of an answer. It may take a couple of appeals of a simple misdemeanor to get to the final answer in the Supreme Court, but this is the way laws are settled. And no, it isn’t going to cost a million dollars to get the answer either.

Argument: Local governments need to ask for authority from the governor to exercise their Home Rule authority.

This is nonsense. This is the preemption argument stated yet another way, the same as the previous two arguments. This assumes that the governor has all of the power over the declared disaster, but again, this is the essence of the dispute over whether cities and counties can act. Cities and counties are allowed to govern their own affairs. HOME RULE IS CONSTITUTIONAL: it is literally a part of the Iowa Constitution. Asking for authority for Home Rule is effectively reinstating the “Dillon Rule,” which is expressly NOT a part of Iowa law. No, local government does not have to ask for authority to exercise Home Rule. If there were a flood disaster declared by the governor over a county and specific regulations for one affected area, does it prevent the local authorities from dealing with an imminent disaster immediately downstream? Do the local officials really have to ask for permission before they evacuate ahead of the flood waters? Is this really what we want with a flood or a pandemic?

Argument: Asserting local authority is somehow in violation of the Constitution or puts the local elected official in oppsition to an oath to support the Constitution.

This is nonsense. Home Rule is a part of the Iowa Constitution. Asserting local control is completely Constitutional. The argument, once again, assumes that the State’s authority is complete and total, leaving no room for local control. This is, at best, an open question. There is no state rule at all. The emergency management authority over such a rule is ambiguous at best. Moreover, having a local rule that is in conflict with a state rule does not make the local rule unconstitutional–it is merely in conflict.. It does not mean that the local official acted illegally or unconstutionally. The argument is designed to confuse and scare local officials. It is utter and complete nonsense, and it shows a disregard for our Constitution and systems of government. [Updated 2020/08/26 10:40:00.]

Argument: The government can’t/shouldn’t be able to make me put on a mask.

“Can’t make me” is just an incorrect assessment of the power of state or local governments. Government can make us do things; it is just a question of how many resources it will dedicate to doing so. Can government make you wear something. Why not? State and local government already require you to wear clothes to go out in public, and that’s pretty close to home in this face mask debate. Try leaving your house naked and see how far you get. It is illegal to not wear glasses if you fail the state-prescribed eye exam to get behind the wheel of a car. The state makes you wear a seatbelt in a car and clearly could (even if ours stupidly doesn’t) require you to wear a helmet when riding a motorcycle. We know that, as with vaccines, the government can make you put some things in your body. Making you wear something to prevent disease (a certified public purpose) is less intrusive than that. The state clearly has the power and authority to make you wear something.

“Shouldn’t make me” is a more of a value statement that anyone is entitled to make. This is really the heart of our personal responsibility debate. Some are willing to take responsibility, and others not. Some believe our government scientists, and others insist on not believing. The authority of the state rests on its ability to demonstrate a public interest in doing so. Both the United States Centers for Disease Control and the Iowa Department of Public Health say you should wear a mask, even if it only reduces, not eliminates transmission of disease. This is a pretty good demonstration of public interest. So, then, when the personal responsibility route fails for whatever the reason, that is when government has to step in and level the playing field and insist on all persons taking that responsibility. The burden of proof to the contrary clearly has shifted to the nay-sayers.

Argument: A face mask rule will be too hard to enforce.

Some laws are harder than others to enforce. No doubt about it. The speed limit is hard to enforce. Petty theft rules are hard to enforce. Vandalism rules are hard to enforce. Seatbelt use is pretty hard to enforce. Under-age smoking is hard to enforce. Does it mean that there is a peace officer in every living room, at every meeting place, or on every street corner? When we put stop signs at intersections, we expect people to obey, even in the middle of the night when no one else is around. Stores put up theft-prevention devices. We educate. We also expect that there are consequences to people who don’t obey when those violations occur and when they are observed. Having a rule to require wearing a face mask does not mean that law enforcement has to be everywhere and has to cite any infraction observed. Some infractions are clearly worse than others. For better or worse, Americans are well attuned to the facts that (a) not all infractions have the same weight and (b) much depends upon the attitude of a law-breaker. Just look at how speeding fines are weighted by how fast you are going. Would you get a warning or a citation if you ran the stop sign by the school with kids present?

Argument: Law enforcement will be inundated with complaints or will be diverted from other important duties.

It is certainly possible that law enforcement will get some calls and maybe they will spend time on their own reminding people, but otherwise, balderdash. If law enforcement has bigger fish to fry, they will fry them. When did we stop trusting law enforcement to figure out how to do their jobs? If they don’t have some other more important call, it is triage as usual because nothing else has changed about their job. The job of law enforcement is to enforce the laws that the policy makers make. Does law enforcement respond to every phoned-in complaint about every jaywalker and reckless driver now? Maybe after they get done doing whatever happens to be more important in the moment. Will that change because of a face mask policy? When people are fired up, there are going to be extra complaints, but this goes with the responsibility. This is clearly an opportunity to exercise good community policing skills.

Argument: My XYZ gathering should be exempt.

No, it shouldn’t. Your First Amendment rights are not impaired by the enforcement of health and safety rules for the prevention of disease. Just think how government has protected you with scores of health and safety regulations getting to and from your meeting (from how your vehicle and its parts were tested and put together to how you and others operate them on the road) and occupying a structure (subject to zoning, building, plumbing, mechanical, electrical, and fire codes). Exercising your right to gather on the playing field, in a convention hall, or in a place of worship is not impaired by complying with a health and safety regulation.

Regulation having anything to do with religious gatherings is beyond touchy. There are a lot of relgious exemptions enshrined in law, starting with the First Amendment. The First Amendment, however, says that the government can’t tell you what religion to practice or how to practice your relgion. The big unanswered question in these circumstances is this: What tenant of your religion says that you should not wear a face mask to prevent the spread of disease?The First Amendment does not prevent local government from requiring a church building to comply with fire codes. Local government can regulate sanitary conditions in a building owned by a religious institution. It isn’t the religion that is being regulated if all gatherings are regulated for disease prevention. [Updated 2020/08/26 10:40:00.]

Argument: So-and-so is a fascist, and we are going to have jackbooted face mask police in the churches and the malls.

I think our local law enforcement gave up jackboots a long time ago. If having a face mask rule is on the slippery slope to fascism, then it is probably fair to say the refusal to have any rules is anarchy, right? It is the sort of careless and offensive talk that never advances the discussion. Our elected local officials in Iowa have no interest in central planning and authoritarianism and would much rather you had done the right thing in the first place. You can still vote someone else in next time if you live through the pandemic and are still fired up about it. We have health and safety rules imposed at every level of government that keep people safe from illness and death. It does not mean that the face mask police are going to descend on your sacred place or your favorite restaurant or your kid’s soccer game. The face mask police descending on your otherwise lawful gatherings is one of those straw man arguments that you put up when you don’t like the policy and, frankly, you just want to instill fear and loathing in your constituency (like calling someone a fascist). No, it is no more authoritarian than any other health or safety rule. Having another rule to enforce does not make it any more likely that law enforcement personnel will be raining down on public or private gatherings. It is just fear-mongering.

Argument: The majority of attorneys/the prevailing legal opinion is that cities and counties don’t have an authority for their own rule.

Show me the poll. Where is the authority for that assertion? There are two informal opinions from the attorney general’s office. One is an email to the governor’s office and the other is a short letter admitting that local boards of health might have some authority. Granted, the attorney general’s office is looked at as an authoritative source, but these are not exactly your usual highly researched, formally published attorney general opinions with lots of authority. Neither goes beyond the bald assertion that local government cannot create their own rules because the governor has disaster authority. Neither describes how local rules are preempted. Neither discusses Home Rule in any depth, how the state law supposedly preempts local law, or whether state and local rules could be harmonized. So, where is the groundswell of support one way or the other? It is a little troubling to see such an assertion without some foundation.

Argument: The governor’s statement that local government does not have authority is enough to settle the matter of whether there is a power of Home Rule or is enough to settle whether the state has a rule preempting local action.

No, it isn’t. That is another nonsensical argument that (a) assumes that Iowa Code chapter 29C magically clothes the state and the governor with all of the power over a disaster response; and (b) assumes an oral statement of the governor at a press conference amounts to a state regulation. Once again, no it doesn’t. Show me anything in chapter 29C that expressly says that the State has exclusive authority to respond to a disaster, health or otherwise. It is not there. You are left with the argument, then, about whether there is some sort of implied preemption of local authority. The governor has issued a lot of proclamations, but she has not stated unequivocally that she asserts authority over rules for face-covering for this health disaster. She could, presumably, have done it. She hasn’t. The governor’s press conference comments are all anyone has to go on. There is no formal opinion from the governor, and presumably there is much reliance upon a short email from the an assistant attorney general to the governor’s staff. It is fine to give deference to the governor and the attorney general’s office, but the fact of the matter is that there actual Constitutional powers that the Iowa Supreme Court says will only be preempted when there is a “high degree of expression” and may not be preempted at all because state and local rules can cover similar subjects if the rules can be harmonized. [Updated 2020/08/26 10:40:00.]

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You are welcome to believe that COVID-19 is not real or that the pandemic is not real or overblown or that face masks are ineffective. As my comments, suggest, I disagree.

You are welcome to believe that wearing a face mask is a terrible infringement of your liberty. In context, however, a face mask rule is not a novel or significant infringement of personal liberties.

Iowa Constitution gives local leaders power over face mask policy – counties, too

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I recently wrote a commentary that concludes that Iowa cities have Home Rule authority to create health rules, such as face mask rules (republished here). What follows here is drawn from a memorandum about how Iowa counties have similar authority under the Iowa Constitution, multiple Iowa statutes, and a considerable body of Iowa case law. A board of supervisors, acting in concert with the county board of health, has considerable power to make health related rules, including a mandating the use of personal protective equipment (PPE), like face masks.

Constitutional and Statutory Authority of the County.

Iowa Home Rule from 30,000 feet.

Home Rule authority under the Iowa Constitution, Article 3, Section 39A, is generally the power of the county, through its board of supervisors, to govern its own local affairs in the board’s own discretion. The County Home Rule Amendment, approved by voters and effective since November 1978, provides:

“Counties … are granted home rule power and authority, not inconsistent with the laws of the general assembly, to determine their local affairs and government ….”

Home Rule is limited by those cases where the state has explicitly taken a particular power or specified a particular duty or method. County Home Rule also yields to municipal authority within the city’s jurisdiction if the county rule is in conflict with a city rule.

The opposite of Home Rule is the “Dillon Rule.” Under the Dillon Rule, a local government has only the power expressly granted by the state. The Iowa Supreme Court in Polk County Board of Supervisors v. Polk Commonwealth Charter Commission, noted: “In Merriam v. Moody’s Executors, 25 Iowa 163, 170 (1868), Chief Justice John F. Dillon established a rule for the determination of local government power which came to be known as the ‘Dillon Rule.’ City of Des Moines v. Master Builders, 498 N.W.2d 702, 703 (Iowa 1993). This rule held that municipal and county governments could only possess and exercise powers which were: ‘(1) expressly granted by the legislature; (2) necessarily or fairly implied in or incident to the powers expressly granted; and (3) those indispensably essential—not merely convenient—to the declared objects and purposes of the municipality.’ Gritton v. City of Des Moines, 247 Iowa 326, 331, 73 N.W.2d 813, 815 (1955).” The County Home Rule Amendment expressly abolished the Dillion Rule: “The proposition or rule of law that a county … possesses and can exercise only those powers granted in express words is not a part of the law of this state.”

Home Rule authority is codified in Iowa Code section 331.301(1):

“A county may, except as expressly limited by the Constitution of the State of Iowa, and if not inconsistent with the laws of the general assembly, exercise any power and perform any function it deems appropriate to protect and preserve the rights, privileges, and property of the county or of its residents, and to preserve and improve the peace, safety, health, welfare, comfort, and convenience of its residents.”

In Iowa Code section 331.301(2) the General Assembly places in the hands of the board of supervisors all powers and duties of the county. The abolition of the Dillon Rule is also codified at Iowa Code section 331.301(3): “The enumeration of a specific power of a county, the repeal of a grant of power, or the failure to state a specific power does not limit or restrict the general grant of home rule power conferred by the Constitution and this section. A county may exercise its general powers subject only to limitations expressly imposed by a state law.”

Both the courts and the legislature have helped to define how to reconcile when and how state and local powers are in conflict. This occurs when the power exercised is “inconsistent” or, more specifically, “irreconcilable.” In Goodell v. Humboldt County, the Court said, “subject to this restriction and principles of preemption, a county may exercise its home rule powers on matters that are also the subject of state law.” The Court came to the same conclusions in Decatur County v. PERB and Sioux City Police Officers’ Association v. City of Sioux City. This means that the county and state can have same or similar rules, provided (a) that the state has not expressed otherwise, fully occupying the field, and (b) that county cannot set standards that are lower than required by state law may be more stringent than state law.

Reconciling Home Rule with state authority.

Home Rule authority may not be “inconsistent” with state law, and this is also explicitly included in both the Iowa Constitution and statutes. The General Assembly defines at Iowa Code section 331.301(4) the term “inconsistent” as meaning “irreconcilable” (emphasis supplied). There are two additional statutory provisions that further clarify the meaning of “inconsistent” and “irreconcilable.” The General Assembly also provides at Iowa Code section 331.301(5): “A county shall substantially comply with a procedure established by a state law for exercising a county power unless a state law provides otherwise. If a procedure is not established by state law, a county may determine its own procedure for exercising the power.” In Iowa Code section 331.301(6)(a), the General Assembly provides: “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.”

The Iowa Supreme Court has ruled that an “ordinance is irreconcilable with a law of the General Assembly and, therefore, preempted by it, when the ordinance ‘prohibits an act permitted by statute, or permits an act prohibited by a statute.’” For example, the State expressly proscribed local regulation of obscene materials, consequently a city could not. (See Chelsea Theater Corp. v. City of Burlington.) It follows, reason the courts, that under home rule, local government “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.”

State law preemption may be express or implied. As the Iowa Spreme Court said in Goodell v. Humboldt County, “Express preemption occurs when the general assembly has specifically prohibited local action in an area. … Obviously, any local law that regulates in an area the legislature has specifically stated cannot be the subject of local action is irreconcilable with state law.” Implied preemption occurs either (a) when a local ordinance allows a lesser standard than required by state law or (b) “when the legislature has ‘cover[ed] a subject by statutes in such a manner as to demonstrate a legislative intention that the field is preempted by state law.’”

The mere existence of a state law regulating some particular matter does not create preemption. In Goodell v. Humboldt County, the Iowa Supreme Court ruled, “It would be inconsistent with Iowa’s county home rule amendment, our home rule statutes and this court’s prior cases to imply preemption based on an argument that statewide regulation of an area is preferable to local regulation, in the absence of an expression of legislative intent to completely regulate the area in question.” The Court noted that a “high degree of expression” would be “required of the legislature” to find preemption.”

Health and Safety Powers of the County.

Iowa Constitution Article 3, Section 39A, and Iowa Code section 331.301 literally give to counties the power to determine their local affairs without the necessity of a specific grant of state authority. Under the Iowa Code, a county expressly has authority to “exercise any power” and to “perform any function” based on the county’s own judgment of what “it deems appropriate” for “safety, health, welfare … of its residents.” This is often referred to as the general police power, but it is the basis for the county’s general regulatory authority over the conduct of persons within its jurisdiction over those specific subject areas.

Iowa Code chapter 137 defines the “structure, powers, and duties of local boards of health.” The legislature vests in the county board of health “jurisdiction over public health matters in the county” and authority to enforce state health laws, rules, and orders and to make and enforce its own reasonable rules not inconsistent with state law and rules. The local board’s rules become effective after the board of health holds a hearing after published notice and the board of supervisors approved the rule and published it.

Under Iowa Code chapter 29C, the governor has authority to proclaim a disaster emergency. The governor can suspend state laws, rules, and regulations if there is a specific finding that strict adherence would “prevent, hinder, or delay necessary action in coping with the emergency.” This may include any state laws “limiting local governments in their ability to provide services to aid disaster victims.” The governor also may delegate any power under chapter 29C. The disaster power extends to a “public health disaster.”

The “public health disaster” is a disaster as defined in chapter 29C—that is, anything that, among other things, threatens public health—caused by, among other things, a novel infectious agent and has a high probability of death, disability, or widespread harm or health consequences. Where there exists a public health disaster, Iowa law provides, “the department, in conjunction with the governor, may …” take various actions, including, under Iowa Code section 135.144(3): “Take reasonable measures as necessary to prevent the transmission of infectious disease and to ensure that all cases of communicable disease are properly identified, controlled, and treated.”

The ultimate question of local authority revolves around whether these few words ultimately occupy the field so as to preclude any local action.

In making this judgment, it is fundamental to give the ordinary meaning to statutes and the words by which they are composed. It is, frankly, nonsensical to read these words as meaning that only a governor may take reasonble measures. The legislature surely knows how to make that power exclusive, and it simply did not do so.

The governor has issued 21 emergency disaster proclamations between March 9, 2020, and July 24, 2020, addressing the COVID-19 pandemic. The governor has explicitly exercised authority under Iowa Code sections 29C.6(1), 135.140(6), and 135.144. In these declarations, the governor has directed certain businesses and certain types of “mass gatherings” to employ social distancing and other public health measures consistent with guidance issued by the Iowa Department of Public Health.

Except in one passage, there are no references in the governor’s latest proclamation to masks or face coverings in public and certainly no mandate for use of PPE. The one and only statement in the proclamation about masks is that a casino may require face masks. The governor’s proclamations incorporate by reference the guidance of the Iowa Department of Public Health (“IDPH”). IDPH says that one is “strongly encouraged” to “consider the use of cloth face coverings (when practical).” The governor’s widely reported position is that she will not issue a mandatory face-covering order. It is completely and utterly clear that there is no state mandate for PPE.

The office of the attorney general has issued two informal letters,^/1/ one by Heather L. Adams email to Sam Langolz, Michael Boal, and Sarah Reisetter, dated March 24, 2020, and one by Michael L. Bennett letter to Senator Zach Wahls, dated June 23, 2020. In these letters, the attorney general staff take the position that the governor has taken the emergency management powers by proclamation and that these allow her to take measures relating to disease transmission and to delegate (or, in this case, not to delegate) authority. The conclusion of the attorney general’s office as stated in these two informal letters is that the governor’s power relating to public health disaster is exclusive. There is no analysis in these letters of whether a local government’s regulations consistent with state laws or regulations would be otherwise enforceable. There is, however, recognition that the local board of health might have continuing authority.

Local authority for face-covering mandates.

From this analysis of Home Rule authority and public health disasters, we know that a local mask mandate is preempted by the state only if stated expressly or it can be reasonably implied and cannot otherwise be harmonized with state law.

The sole fighting issue for local government — counties and cities alike — is whether the mere existence of Iowa Code chapter 29C or the issuance by the governor of a public health disaster proclamation under chapter 29C is a state regulation that impliedly preempts any local government regulation.

It is abundantly clear that there is no express statement in Iowa state law, or by rule, regulation, or proclamation that affirmatively mandates a face covering. If that power resides in the governor or the Iowa Department of Public Health under Iowa Code chapters 29C, 135, or 137, it can safely be said that no such rule has been made or such power exercised. A local requirement of a face-covering does not appear to be expressly preempted and, therefore, if it is preempted at all, could only be preempted by implied preemption.

The Iowa Supreme Court has said there are two ways that implied preemption may occur. One of those ways is by an action that effectively creates a standard lesser than required by the state. There is, as has been demonstrated, no state standard for face-covering on a state-wide basis, so it can be safely concluded that the existence of a local regulation would not lessen the statewide standard. The other possibility for implied preemption is that the state has completely occupied the field.

The governor and the attorney general appear to have taken the position that the public health disaster effectively occupies the field regarding any type of rules that might include a rule for the use of PPE during this pandemic. Neither the governor nor the attorney general has elaborated on the origin of that exclusivity beyond stating that the governor has certain powers in a health emergency and that powers can be delegated (or not). The Iowa Supreme Court, however, set a very important standard:

“It would be inconsistent with Iowa’s county home rule amendment, our home rule statutes and this court’s prior cases to imply preemption based on an argument that statewide regulation of an area is preferable to local regulation, in the absence of an expression of legislative intent to completely regulate the area in question.”

Goodell v. Humboldt County, 575 NW 2d 486, 498 (Iowa 1998) (emphasis supplied).

It is difficult to cite the absence or the nonexistence of a particular legislative intent. One has to look for evidence that the legislature did not displace local control with state regulation. The contrary evidence for local control, beyond the basic Constitutional Home Rule, is scattered throughout Iowa law. Assistant Attorney General Bennett, for example, conceded the existence of the local board of health, which has been granted local control over health regulation. The emergency management statute enabling the governor’s proclamation nowhere states that the governor’s power is exclusive of local government control. This power is given and may be exercised by the governor, and there are multiple references in the emergency management law to cooperation with and assistance to local governments.

The explicit policy of the State of Iowa is: “[t]o confer upon the governor and upon the executive heads or governing bodies of the political subdivisions of the state the emergency powers” in chapter 29C and “[t]o provide for the rendering of mutual aid among the political subdivisions.” The legislature has empowered mayors to govern by proclamation and made provision for emergency management agencies at the local level. There is nowhere in Iowa Code chapter 29C an expressed intent by the legislature that state authority is exclusively to be exercised in an emergency. Rather, a closer reading suggests that at least one intent is that the emergency management powers be used in aid of local government. In the broader context of emergencies generally, it could be argued that it is a practical impossibility for local government to be completely displaced. It is exceptionally difficult to say that the General Assembly—with or without explicitly stating its intent—expressed “an intent to completely regulate the area in question.” It is very difficult to find a “high degree of expression” for preemption.

There are multiple reasons why local authority is not abrogated even if one were to conclude that the legislature had attempted to occupy the field of how public health emergencies were managed. First, local government remains on the front line regardless of the state response. Local emergency management agencies, boards of health, sheriffs, police departments, hospitals, and first responders are the ones on the ground conducting operations regardless of the type of emergency. Second, constitutional law, statutory law, and common law all indicate that a local regulation can coexist with state regulation under the appropriate conditions.

If a county were flooded and the governor exercised disaster powers to evacuate a part of a county immediately affected, does it mean that the county or a city downstream in that county is without power to evacuate? Does it mean that the local government cannot do what is necessary to preserve the health and safety of citizens in the affected area? or downstream? The General Assembly surely did not mean that. Why should it be different if the “flood” is “tornado damage” or “virus”?

Ultimately, Iowa law allows local regulation to exist when it can be harmonized to the state law. Iowa Code section 331.301(6)(a) allows local regulation to “set standards and requirements which are higher or more stringent than those imposed by state law, unless a state law provides otherwise.” Neither the governor nor the Iowa Department of Public Health has exercised any power to regulate face-covering during the pandemic. Logically, therefore, in the absence of any state face-covering mandate, there is nothing with which to reconcile a local regulation.

It is impossible to conclude that a local regulation is irreconcilable with a nonexistent state regulation.

If the governor or the IDPH were to issue a state-wide mandate, one would still have to attempt to harmonize these. However, literally everything else – from a statewide rule for use of a face mask to the complete absence of any rule – is logically consistent and completely reconcilable with local rule requiring the use of a face mask (i.e., not irreconcilable).

The General Assembly provided in Iowa Code section 137.104 certain specific methods of adopting a public health rule through the board of health. The General Assembly has also provided a method for a county to exercise specific health powers in Iowa Code chapter 137. Therefore, notwithstanding the general constitutional Home Rule powers over health, safety, and welfare, the board of supervisors probably must follow the specified statutory framework for exercising that power. Consequently, under Iowa Code section 137.104(1)(b), if a county were to exercise the authority to require the use of personal protective equipment generally, that authority would be conferred by an action of the board of health after notice and hearing and the approval by the board of supervisors followed by publication in the newspaper of that action.

If the legislature wants to take power away from local goverments, Iowa law requires this to be be done explicitly. The General Assembly knows how to do this, and it has not been done.

Summary and conclusion.

Iowa law gives a county lots of room to make and to enforce a regulation proposed by the county board of health involving the required use of PPE notwithstanding any gubernatorial public health disaster proclamation. There is nothing in state law that expressly preempts this authority. It is exeedingly difficult to find anything in state law that implies that local action is preempted. Any county action undertaken to require the use of PPE under these circumstances is or could be completely reconcilable with any state law, including any present or future public health disaster proclamation.

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^/1/Note that “informal letters” issued by staff in the Attorney General’s Office are not binding. “Most advice to state agencies is provided in the form of informal advice. Keep in mind that informal advice represents the position of the individual attorney and should not be described as an Attorney General Opinion.” See https://www.iowaattorneygeneral.gov/about-us/attorney-general-opinions. (Note added 2020/10/29 15:33.)

Iowa Constitution gives local leaders power over face mask policy

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Note: This commentary orginally appeared in the Iowa Capital Dispatch on July 21, 2020.

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What do an unlicensed vehicle and a face mask have in common with a Civil War era judge? The answer, I think, is that the Home Rule Amendment to the Iowa Constitution overturned that judge’s view of local governments and gave cities and counties some say over what you must do with them.

In 1990, Stan Gruen fought the City of Des Moines to the Iowa Supreme Court over a $100 penalty for keeping an unlicensed vehicle on his property. He did not dispute that he was in violation of the city’s ordinance. He argued that there was nothing in state law that that prevented him from keeping an unlicensed vehicle on his property.

The state, you see, has very clearly occupied the field on vehicle regulations. As the Supreme Court put it, “Gruen’s argument boils down to one proposition: because the general assembly has provided that he may lawfully possess unregistered vehicles under certain conditions, the city may not in any manner regulate where or how he parks those vehicles.”

If you consider, for a moment, smoking regulations or even when and where you can carry a firearm, Gruen’s argument made some sense. When the General Assembly speaks, the subordinate local governments must abide by the state’s specific legislation. In fact, until 1968, Iowa lived – as many states still do – under the “Dillon Rule.”

Justice John Forest Dillon served on the Iowa Supreme Court from 1862 to 1868. His 1868 opinion in Clinton v. Cedar Rapids and the Missouri River Railroad articulated the rule that local governments have only the specific powers given by the legislature. Conversely, Dillon would say, local governments have no power not expressly given them.

In 1968 and 1978, the People of Iowa expressed exactly the opposite in a pair of Home Rule amendments — one for cities and later one for counties. We expressly abolished the Dillon Rule: “The Rule or proposition of law that a municipal corporation possesses and can exercise only those powers granted in express words is not a part of the law of this state.”

So, it might be lawful to keep an unlicensed vehicle, but the Iowa Supreme Court said that the city could tell Mr. Gruen when and where he could store it. If state law and local law could be harmonized, then the local ordinance did not run afoul of the state law. Why? Home rule.

“Under home rule,” the Supreme Court has ruled, “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.” Equally important, the General Assembly codified this saying, “An exercise of a city power is not inconsistent with a state law unless it is irreconcilable with the state law.”

Now, like unlicensed vehicles, the question is whether local government has anything to say about mandatory personal protective equipment (PPE) when the state has a law or even might have a rule. Two attorney general opinions^/1/ and comments of Gov. Kim Reynolds rest on the assertion that the governor’s emergency management authority occupies the field and local governments have nothing to say about PPE. These assertions run counter to the Iowa Constitution and multiple Iowa Supreme Court rulings and overlook a couple of fundamental things.

One fundamental issue overlooked is that, whether folks at the state level like it or not, our Constitution literally grants local governments “home rule power and authority, not inconsistent with the laws of the general assembly, to determine their local affairs and government.” The courts have repeatedly said this means a local action must be irreconcilable with the state action. That is a pretty high bar. Moreover, where possible the courts are supposed to try to harmonize the local and state actions.

When the court ruled against Stan Gruen, it said, “A municipal ordinance is irreconcilable with a law of the General Assembly and, therefore, preempted by it, when the ordinance ‘prohibits an act permitted by statute, or permits an act prohibited by a statute.’” This leads to the other fundamental issue overlooked: the Iowa Constitution requires one to go deeper and actually to test the local action for whether it is irreconcilable and cannot be harmonized with state action.

The argument seems to boil down to the same one made by Stan Gruen. The emergency management power has been exercised. The governor could make a proclamation about mandatory PPE use. Consequently, this power is exclusive to the state — even if it would be the same rule made by a city or county.

Make no mistake, the breadth of the governor’s emergency management power is breathtaking. Likewise, state and local boards of health have substantial public health rule-making authority. If none of these have taken an action and a city were to step into the breach — fully assessing their almost fiduciary obligation to promote the health and safety of their citizens as permitted by the Home Rule Amendment— what exactly is so irreconcilable with state action?

The only scenario where a local rule requiring mandatory PPE would be irreconcilable with a state rule is when there is an actual state rule prohibiting PPE. Leaving to another time whether this would ever be an appropriate or lawful order for a state official to give, it seems to me that every other scenario is logically consistent with and completely reconcilable with a local rule requiring the use of PPE. If the state came along with an order for the use of PPE, for example, it would be the same and, by definition, not irreconcilable.

If the state has no rule about where to park your unlicensed vehicle or when and where to put on your face mask but a local government does, what would be inconsistent or irreconcilable? Saying that the state has occupied the field is only part of the analysis. The Iowa Constitution says you have to find the inconsistency and try to harmonize. When there is the absence of a state rule — when and where to park your unlicensed vehicle or when and where to wear your face mask — it simply is not logically sound to say that a city’s or county’s rule is irreconcilable with the state law.

One can disagree about whether local government should be making their own rules mandating PPE. That is a healthy debate to have. The issues are complex. On one hand, cities and counties do not have the same access to experts and the bigger picture. There are enforcement and compliance issues. On the other hand, cities and counties have a better handle on what the local hospitals can handle. Local governments have a better feel for their unique problems, like concentrations of factory and meat processing jobs, college students, vulnerable populations, access to medical care, or areas at high susceptibility of disease transmission. On the subjective question of whether local rules are a good idea, you can draw your own conclusions.

On the objective issue of whether a city or county could have a local rule about PPE, I think Home Rule does allow local governments to take stock of their own situations and have their own rules. It is not enough to say that a state official could imagine a state rule that would conflict. It is also not enough that the state actually has a rule. State and local rules must actually be in conflict for the local rule to be inappropriate.

Iowa has had Home Rule for more than 50 years. It is time to let old Judge Dillon rest in peace.

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^/1/Contrary to this statement, there actually is no formal Attorney General Opinion. There are two informal letters, both accessable below. See the Iowa Attorney General’s exlaination here. Note that the Attorney General does not consider informal letters binding. “Most advice to state agencies is provided in the form of informal advice. Keep in mind that informal advice represents the position of the individual attorney and should not be described as an Attorney General Opinion.”

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Since this commentary appeared in the Iowa Capital Dispatch, there have been numerous developments around the State of Iowa.

Here is a collection of memoranda from other jurisdictions and other actions taken:

Memorandum re county authority for PPE (signed).20200806Download

Story County Board of Health memorandum re PPE.20200803Download

Dubuque city attorney memo re PPE.20200805Download

Dubuque Ordinance re PPE.20200807Download

Johnson County Board of Health regulation re PPE.20200805Download

Johnson County board of supervisors resolution re PPE.20200805Download

Johnson County Board of Health memo re PPE.20200805Download

Attorney General informal advice re PPE (Bennett-Wahls).20200623Download

Attorney General informal advice re PPE (Adams to Langholz).20200324Download

Muscatine County Attorney memo re PPE.20200706Download