Legal Primer on Georgia’s Public Health “State of Emergency”

We are living through Georgia history. For the first time ever, Georgia has declared a public health emergency in the state. Below is an explanation of Georgia law that will govern the state of emergency and the expansive powers granted to Gov. Kemp during this time.

Defining “public health emergency”

On Saturday, March 14, 2020, Governor Kemp proclaimed a “public health emergency.” This specific type of emergency is defined by Georgia statute as:

[T]he occurrence or imminent threat of an illness or health condition that is reasonably believed to be caused by bioterrorism or the appearance of a novel or previously controlled or eradicated infectious agent or biological toxin and poses a high probability of any of the following harms:

(A)  A large number of deaths in the affected population;

(B)  A large number of serious or long-term disabilities in the affected population; or

(C)  Widespread exposure to an infectious or toxic agent that poses a significant risk of substantial future harm to a large number of people in the affected population.[1]

Governor’s powers under “public health emergency” proclamation

Georgia law provides the Governor with incredibly expansive powers during a public health emergency.[2] Most notably, these include authority to:

  • seize, take for temporary use, condemn or commandeer any private property;[3]
  • suspend any regulatory statute or regulation of any state agency;[4]
  • “[t]ransfer the direction, personnel, or functions of state departments and agencies . . .;”[5]
  • “[c]ompel a health care facility to provide services or the use of its facility” under the auspices of the Department of Public Health;[6]
  • “compel the evacuation of all or part of the population from any stricken or threatened area within the state” and take over roads and highways, placing limits on modes of transportation;[7]
  • “[c]ontrol ingress and egress to and from a disaster area, the movement of persons within the area, and the occupancy of premises therein;”[8]
  • “[s]uspend or limit the sale, dispensing, or transportation of alcoholic beverages, explosives, or combustibles . . .,” except for firearms or ammunition;[9]
  • “transfer from any available fund in the state treasury such sum as may be necessary to meet the emergency or disaster,” including motor-fuel taxes if the Governor first declares the state of emergency to be a ‘major catastrophe’;[10]
  • “provide welfare benefits to the citizens of this state in the form of grants” but only where matching federal funds are available;[11] and
  • institute a public quarantine or vaccination program via the Department of Public Health.[12]

Duration of “public health emergency” proclamation

The Legislature is required to ratify Governor Kemp’s proclamation for it to remain in effect longer than two days.[13] The Legislature convened on March 16, 2020 for this limited purpose and ratified the state of emergency.

The proclamation now will remain in effect until one of the following events occur:

  • 30 days (Monday, April 13, 2020) elapses, whereupon the Governor may “renew” the proclamation.[14]
    • Notably, Georgia law is unclear as to whether this renewal would require a reconvening of the Legislature in special session to again either ratify or terminate the renewed state of emergency or whether the Governor’s “renewal” takes automatic effect.[15]
    • As a compromise around this uncertainty, when the Legislature ratified the state of emergency on March 16, 2020, it also certified a special session to occur on April 15, 2020 (two days following the expiration of the current proclamation), at which point it can choose to ratify or terminate what is expected to be Gov. Kemp’s renewed state of emergency.
  • The Governor terminates the state of emergency on his own.
    • He may do so whenever he “finds that the threat or danger has passed or the emergency or disaster has been dealt with, to the extent that emergency or disaster conditions no longer exist . . . .”[16]
  • The General Assembly by concurrent resolution terminates the state of emergency.[17]
    • In order to pass this resolution, the Legislature would again have to convene a special session. The Legislature can force the Governor to convene a special session by having three-fifths of each chamber (108 House members; 34 Senators) “certify to the Governor in writing, with a copy to the Secretary of State, that in their opinion an emergency exists in the affairs of the state.”[18] If the Governor fails to convene the special session within three days, excluding Sundays, the Legislature may convene itself.[19]

[1] O.C.G.A. § 38-3-3.

[2] See, e.g. O.C.G.A. § 38-3-51(b), (c), (d), (e), (f), (g), (i).

[3] Id. at (c)(2), (d)(4).

[4] Id. at (d)(1).

[5] Id. at (d)(3).

[6] Id. at (d)(4.1).

[7] Id. at (d)(5), (6).

[8] Id. at (d)(7).

[9] Id. at (d)(8).

[10] Id. at (e); Ga. Const. of 1983, art. III, § IX, ¶ VI(b).

[11] Id. at (g).

[12] Id. at (i). Specific due process procedures are outlined in statute to govern any such program.

[13] O.C.G.A. § 38-3-51(a) (“As a condition precedent to declaring that a state of emergency or disaster exists as a result of a public health emergency, the Governor shall issue a call for a special session of the General Assembly pursuant to Article V, Section II, Paragraph VII of the Constitution of Georgia, which session shall convene at 8:00 A.M. on the second day following the date of such declaration for the purpose of concurring with or terminating the public health emergency.”).

[14] Id.

[15] Compare O.C.G.A. § 38-3-51(a) (“No state of emergency or disaster may continue for longer than 30 days unless renewed by the Governor. The General Assembly by concurrent resolution may terminate a state of emergency or disaster at any time. Thereupon, the Governor shall by appropriate action end the state of emergency or disaster.”) with id. (“As a condition precedent to declaring that a state of emergency or disaster exists as a result of a public health emergency, the Governor shall issue a call for a special session of the General Assembly . . . for the purpose of concurring with or terminating the public health emergency.”) (emphasis added).

[16] Id.

[17] Id.

[18] Ga. Const. of 1983, art. V, § II, para. VII(b).

[19] Id.