Are Stay at Home Orders an Unconstitutional Taking?

In the midst of the COVID-19 pandemic, a question some are asking is whether there is a risk that governments will have to deal with claims that they have unconstitutionally taken value from property owners with the various stay at home edicts, closures, and other similar responses to the pandemic. The short answer is that such claims are unlikely to be successful as long as an ordinance and the local charter are followed, but it is a worthwhile discussion to keep in mind as municipalities consider their response to the pandemic.

The Constitution separates takings into two categories: physical and regulatory. A physical taking is, just like it sounds, when a government takes property away from an owner. It is fairly easy to identify physical takings, such as when DOT or a municipality takes property to build or expand public roads. A physical taking is unlikely – I am not aware of any governmental bodies in the U.S. physically taking property in response to the pandemic – but conceivably a municipality could take a building for quarantine or medical purposes. Should that occur, the municipality would need to pay the owner fair market value of the property taken. Since most of the buildings or spaces suitable for such uses are public buildings or spaces (e.g., the tents in Central Park in New York City), it is improbable that municipalities will need to compensate in such a way. 

On the other hand, regulatory takings could, in theory, apply to certain federal, state and local responses to the pandemic. Certain businesses deemed nonessential and specifically ordered to close undoubtedly will take a financial hit. Hair salons, theaters, and gyms, among others, forced to close could make an argument for lost income as a result of government measures to curb the spread of COVID-19 by claiming governments have violated the U.S. and Maine Constitutions in doing so. The Fifth Amendment provides protection against federal takings, while the Fourteenth Amendment protects against state and local takings.

Given what the CDC, the Maine CDC, and most public and private medical professionals have stated concerning COVID-19, governmental stay at home orders, forced closures, and so on are almost certainly a “valid use of police power,” which powers are given to states under the Tenth Amendment to act for the well-being of the public. The most important thing will be to make sure any emergency actions or orders strictly follow a local emergency planning ordinance and the municipal charter.

Maine Legislature Passes COVID-19 Omnibus Bill re Public Meetings, Finance, and Other Municipal Concerns

The Maine Legislature last night passed emergency legislation, LD 2167 (referred to as the COVID-19 Omnibus Bill), which addresses many of the concerns being faced by municipalities in this unprecedented situation. Following is our summary of the provisions of this law which impact municipal government:

Public meetings

• During the declared state of emergency, meetings of municipal boards and committees may be conducted remotely by telephone, video, or Internet. The method must be adequate to allow members to hear and speak to one another, and must allow the public to hear what is said.
• Notice must still be provided (we recommend emphasizing web and press announcements during this time, if offices are closed and physical postings are not possible). The notice must include information on how the public may watch and/or participate. Again, remember that you do not need to make provision to accept public comments unless the meeting will include a required public hearing.
• The law does not appear to require that you provide a physical space and phone, terminal, or display where the public can attend in person to watch or listen to the proceedings.
• Votes taken at a remote meeting must be by roll call.

Budget and finance

• Similar to the process for enacting school budgets, the law allows for a municipality that cannot adopt its budget at the customary time to spend according to the prior year’s adopted budget until the current year’s budget can be passed. If these delays continue to the point at which commitment becomes necessary, taxes may also be committed based upon the prior year’s budget.
• During the period of the declared state of emergency and for 30 days after, disbursement warrants may be signed by a majority of the municipal officers with no public meeting required. The implication is that the municipal officers may sign individually with no meeting required.
• If the level of state education subsidy is not finalized before June 1, 2020, the school budget meeting and validation process may be delayed until 30 days after either DOE notifies the school unit of the amount of subsidy or the state of emergency ends. If the budget is delayed under this provision, the school may operate based on the prior year’s budget between July 1 and the date the new budget goes into effect.

Elections

• During calendar year 2020, the municipal officers may postpone a municipal secret ballot election by posting a notice in a conspicuous public location at least two days prior to the election. The notice must either indicate the new date of the election or indicate that the municipal officers will schedule it at a date to be determined. Ballots already printed for that election may be reused for the rescheduled election (despite including the wrong date), and absentee ballots already cast for the election must be held by the clerk and processed on the rescheduled election date.

Employment

• If an employee is laid off as a result of the state of emergency, unemployment benefits paid to him/her will not be charged against the employer’s experience rating.
• Employees will be eligible for unemployment benefits if they are (1) subject to a quarantine or isolation requirement; (2) have been temporarily laid off due to COVID-19 related closures; or (3) are on temporarily leave due to quarantine, isolation, or need to care for dependent family members as a result of COVID-19.

Education

• The Governor and Commissioner of Education may develop a plan to waive compulsory attendance requirements and/or allow remote learning to take the place of in-person instruction requirements.
• The Governor and Commissioner of Education will also implement a plan to continue to provide nutrition services during any period of COVID-19 related school closures.

Other municipal business

• Vehicle registrations, liquor licenses, and dog licenses are deemed extended until 30 days after the end of the state of emergency.
• Vehicle registrants may use the Rapid Renewal program even if their municipality does not already participate.