Proclamation Watch

Proclamation Watch By Cindy Alia, April 15, 2020

Update

Update May 31  A plan by any other name is not liberty!  While some may rejoice in the May 31 expiration of Governor Inslee's Stay Home Stay Healthy edict Proclamation 20-25, it has been replaced by an new catchy phrase, "Safe Start"  meaning you don't have to stay at home, but the businesses you favor may or may not be free to operate in your county.  The governor also extended 23 proclamations, some of which make Washingtonians less safe, but seem to be politically beneficial to the governor, for example, waiving childcare background checks, https://www.governor.wa.gov/sites/default/files/proclamations/20-31.3%20-%20COVID-19%20DCYF%20Bkgd%20Cks%20Ext%20%28tmp%29_0.pdf?utm_medium=email&utm_source=govdelivery

You can read the list of extended proclamations here. https://www.governor.wa.gov/news-media/inslee-extends-23-proclamations-relating-covid-19

In fact, after the posting of this blog, Governor Inslee issued Proclamation 20-25.4 Transition from Stay Home Stay Healthy to Safe Start Stay Healthy County by County Phased Reopening.  You can read the proclamation at this link.  https://www.governor.wa.gov/sites/default/files/proclamations/20-25.4%20-%20COVID-19%20Safe%20Start.pdf

Governor Inslee still believes, or wants you to believe we in Washington are in a state of emergency.  We may expect to see additional proclamations as the whim may strike the governor, but until then, there are still substantial questions left unaddressed and need attention.  The governor's contact tracing plan is supposed to be voluntary, and is advertised as such, https://medium.com/wagovernor/inslee-announces-contact-tracing-initiative-e8cc76da1e8c 

Yet your voluntary cooperation may end at your point of refusal to volunteer.  The governor's press release above is free of the kind of details that have many in Washington concerned, the details of which are relayed in this article By Mario Lotmore | Lynnwood Times Staff  https://lynnwoodtimes.com/2020/05/12/governor-inslee-lays-out-statewide-contact-tracing-plan-for-covid-19/?fbclid=IwAR2__cvjLEbV5jXHXQgMxG9EqI8VBvqGIo6CugUzNgy-b6HxSj_Qcw5XAUs

The constitutionality of the contract tracing plan is doubtful and has been called into question by many, including these state representatives in a letter to US Attorney General Barr: https://www.wethegoverned.com/wp-content/uploads/2020/05/Final-AG-Barr-letter.pdf

Governor Inslee's totalitarian approach to governing has emboldened agencies to embark upon regulatory over-reach that is outside of and above the law, recently the Department of Labor and Industries has filed an emergency rule for enforcement of the governors refusal to allow businesses to resume working and carrying on commerce.  This prompted Senator Ericksen to file a petition to repeal the rule.  http://dougericksen.src.wastateleg.org/wp-content/uploads/sites/23/2020/05/200528-Letter-to-Gov.-Jay-Inslee.pdf?fbclid=IwAR2NF_Ksd45AVxmNCtWt3GgLrTg3uO4RJzn-RFeAgWysvtmdeiUlAtbjXTY

Is Safe Start better than Stay home Stay Healthy?  A rose by any other name would still smell as tyrannical.

Update May 9. Governor Inslee has, on May 4th issued proclamation 20-25.3 extending stay at home order through May 31 declaring Washington State to remain in lockdown with possible leniencies pending certain vague goals. https://www.governor.wa.gov/sites/default/files/20-25.3%20-%20COVID-19%20Stay%20Home%20Stay%20Healthy%20-%20Reopening%20%28tmp%29.pdf?utm_medium=email&utm_source=govdelivery

Here is a link to a document produced by the leadership of the State Senate and House of Represntatives in which along party lines, for the first time the leadership was divide about taking your civil liberties: http://mrsc.org/getmedia/29320d76-785e-4da6-bb60-00ac65c0efde/2020-covid-sixth-extension-letter.aspx

Today there was a seccond mass protest in Olympia, well attended as the first was, with over 2000 people protesting the taking of their liberties. 

There have been lawsuits initiated for the purpose of protecting and restoring constitutionally protected and enumerated rights proceding through courts.  Glen Morgan at we the governed provided a well sourced article describing that litigation on his website We the Governed, linked here: https://www.wethegoverned.com/corona-virus-lawsuits-against-governor-inslee-the-list/

Update April 29. On April 27 Governor Inslee issued an amendment to Proclamation 20-25 Stay at Home, with Proclamation 20-25.2 https://www.governor.wa.gov/sites/default/files/proclamations/20-25.2%20Coronovirus%20Stay%20Home%20Amend%20%28tmp%29%20%28with%20links%29.pdf

Which has a guidance document embedded that describes how people may recreate https://www.governor.wa.gov/sites/default/files/proclamations /Amending%20Proclamation%2020-25.2%20Outdoor%20Recreation%20Restart%20Guidelines.pdf

It is unclear why the governor would re-iterate his social constraints when proclamation 20-25 will expire on May 4th.

Additionally Governor Inslee believes he has the authority to additionally, ... "continue to prohibit all other public and private gatherings and multi-person activities for social, spiritual and recreational purposes, regardless of the number of people involved. Such activity includes, but is not limited to, community, civic, public, leisure, faith-based, or sporting events; parades; concerts; festivals; conventions; fundraisers; team sports activities, and similar activities that involve a gatheringof people other than a household unit. This prohibition continues to apply to planned wedding and funeral events."

Update April 17,  On April 16 Governor Inslee amended Proclamatiom 20-19 by adding Proclamation 20-19.1 expanding upon, and extending a moratorium on evictions until June 4, 2020. https://www.governor.wa.gov/sites/default/files/proclamations/20-19.1%20-%20COVID-19%20Moratorium%20on%20Evictions%20Extension%20%28tmp%29.pdf

This link leads to a press release on the governor's website that describes the Proclamation: https://www.governor.wa.gov/news-media/inslee-expands-eviction-moratorium-and-adds-additional-protections-residential-and-some

Also on April17 the governor issued proclamation 20-51, Community Associations and Late Fees https://www.governor.wa.gov/sites/default/files/proclamations/20-51%20COVID-19%20Community%20Associations.pdf   which alters RCWs dealing with the subject matter and eliminates bylaws that are associated with in person meetings and charging late fees.  The governor extended previous proclamations, a waiver on restricting driver hours for truck drivers extends through May 15 with proclamation 20-22.1 https://www.governor.wa.gov/sites/default/files/proclamations/20-22.1%20-%20COVID-19%20Truck%20Driver%20Hours%20Extension.pdf

And proclamation 20-23.2 barring disconnection, refusal to reconnect, or to charge late fees to utility residential customers. https://www.governor.wa.gov/sites/default/files/proclamations/20-23.2%20-%20COVID-19%20Ratepayer%20Assistance.pdf

Update April 15, after this article was published Governor Inslee provided an additional proclamation related to incarceration.  Proclamation 20-50, Reducing Prison Population, is linked here: https://www.governor.wa.gov/sites/default/files/proclamations/20-50%20-%20COVID-19%20Reducing%20Prison%20Population.pdf

It is an amending proclamation, adding to and extending proclamation 20-35 which would have had and expiration of April 30, which is nullified by proclamation 20-50 and now has an expiration of May 15.  Accompanying this proclamation Governor Inslee also published an Emergency Commutation Order linked here: https://www.governor.wa.gov/sites/default/files/COVID-19%20-%20Commutation%20Order%204.15.20%20%28tmp%29.pdf?utm_medium=email&utm_source=govdelivery

The Commutation Order suspends the sentences of certain incarcerated individuals as described in the order and as described in the proclamation suspending portions of related RCWs.

Original Article

Governor Inslee proclaimed a state of emergency with proclamation 20-05 on January 29, 2020.  https://www.governor.wa.gov/sites/default/files/proclamations/20-05%20Coronavirus%20%28final%29.pdf   All emergency proclamations are set to expire within 30 days, yet this and each of 43 subsequent COVID-19 proclamations as listed on the governor’s website are under active status. https://www.governor.wa.gov/office-governor/official-actions/proclamations   How can that be?  In view of the law, after 30 days an emergency proclamation shall expire. Because there have been so many proclamations, proclamations amending proclamations, and because of the nature of and impact on properties and constitutionally protected rights, CAPR will regularly follow these actions here in this article, “Proclamation Watch”.   As proclamations are added to the already exhaustive list, we will post them with commentary and links so you can evaluate the effect of the proclamations to your life, liberty, and property.

Controversially and in a despotic fashion, Governor Inslee has taken the opportunity to use the authority of his emergency powers to an unprecedented level.  He has proceeded to issue proclamations on a wide range of topics which piggy-back on his original January 29th proclamation.  Each proclamation is invested with a 30-day expiration.  To date, the governor has issued proclamations ranging from number 20-05 through 20-49.  Each proclamation has not in fact expired, despite stated expirations, and the proclamations involve a level of monocracy that can only be damaging to our liberties as partial and sometimes entire RCWs and WACs, our laws are suspended.  Without an expiration the suspension of law is outside of and above our constitutional rule of law.

These edicts have damaged our economy and have interfered with business to the point of the probable demise of those businesses.  Unemployment has surged with a probability that some may not have jobs to return to.  Consequently, tax revenue will continue to plummet.  At some point in time cut to governmental services and agencies will become unavoidable which will in turn increase unemployment in this state.  Could some or all of this been avoided?  Governor Inslee’s Stay at Home proclamation number 20-25 https://www.governor.wa.gov/sites/default/files/proclamations/20-25%20Coronovirus%20Stay%20Safe-Stay%20Healthy%20%28tmp%29%20%28002%29.pdf  was issued on 3/23/2020 amending and self-extending previous proclamations.  It has not reached the 30-day limit.  This is a proclamation that harbors the infamous “Essential Critical Infrastructure Workers” Document. https://www.governor.wa.gov/sites/default/files/WA%20Essential%20Critical%20Infrastructure%20Workers%20%28Final%29.pdf many are still staggering under this loss of their business properties and jobs.

Proclamation 20-28 Impaired the Open Public Meetings Act and Public Records Act: https://www.governor.wa.gov/sites/default/files/proclamations/20-28%20-%20COVID-19%20Open%20Govt%20Laws%20Waivers%20%28tmp%291.pdf

Proclamation 20-19 has prohibited all evictions until April 17.  https://www.governor.wa.gov/sites/default/files/proclamations/20-19%20-%20COVID-19%20Moratorium%20on%20Evictions%20%28tmp%29.pdf Will this proclamation expire?  Be amended?  Or give encouragement and rise to local prohibitions on rent and mortgage payment as proposed by King County: https://mynorthwest.com/1815209/zahilay-freeze-rent-mortgage-payments/ 

Applicable law authorizing emergency response needs a careful re-write which must take into consideration both the protections for all citizens that may need to happen, and the malfeasance that can happen without a careful apportionment of emergency authority.  Applicable RCWs are 43.06.220, 43.06.200, and 43.06.210; 38.08, 38.52.

There are enumerated rights that must not be impaired when wielding the use of authorized emergency powers.  Constitutional amendments pertaining to rights, Washington State Constitution, Article 1, Sections 1, 3, 4, 11, 24, 29, 30, 32 and Article 2, Sections 12, 42.  United States Bill of Rights, 5th Amendment, 10th Amendment, 14th Amendment, Section 1.  These Articles are in place to protect our rights, but also to provide guidance to government.  Part of that guidance is the authority given by the people to the legislature to call a specific legislative special session.  It is time for the legislature to do so.

Article 2, Section12, (2) “Special Legislative Sessions. Special legislative sessions may be convened for a period of not more than thirty consecutive days by proclamation of the governor pursuant to Article III, section 7 of this Constitution. Special legislative sessions may also be convened for a period of not more than thirty consecutive days by resolution of the legislature upon the affirmative vote in each house of two-thirds of the members elected or appointed thereto, which vote may be taken and resolution executed either while the legislature is in session or during any interim between sessions in accordance with such procedures as the legislature may provide by law or resolution. The resolution convening the legislature shall specify a purpose or purposes for the convening of a special session, and any special session convened by the resolution shall consider only measures germane to the purpose or purposes expressed in the resolution, unless by resolution adopted during the session upon the affirmative vote in each house of two-thirds of the members elected or appointed thereto, an additional purpose or purposes are expressed. The specification of purpose by the governor pursuant to Article III, section 7 of this Constitution shall be considered by the legislature but shall not be mandatory.”

The problem at hand with the present system of governance under emergency proclamation is both the assumption of authority by the governor, and obstacles to assume authority by the legislature.  This has led to a potential or probable endless succession of proclamations that stem from the initial February 29th emergency proclamation and has continued unabated to the present day.  This is a situation that will not abate without political necessity and will need to be driven by the people as that will be the key for elected representatives to act more forcefully on behalf of constituents.  In this present situation, the three-legged stool of our representative form of government, the executive, judicial, and legislative, has lost a leg, the legislative.  Without that leg, due process is unattainable.

Due process for constitutionally protected rights under constitutional law must be included in a remedy: Though not specifically mentioned in the statute 43.06.220, it admits to the constitution being statutory.  There is a lack of due process when the legislature is not bound to act as a body to extend an emergency proclamation.  There is no mechanism to provide for evidence of the legislature acting formally on a specific process of emergency proclamations that should have expired, without legislative action, there is no due process or a method to halt or terminate on-going proclamations.

RCW 43.06.220 https://app.leg.wa.gov/RCW/default.aspx?cite=43.06.220 , Section 2 (g)

(2) The governor after proclaiming a state of emergency and prior to terminating such may, in the area described by the proclamation, issue an order or orders concerning waiver or suspension of statutory obligations or limitations in the following areas:

(g) Such other statutory and regulatory obligations or limitations prescribing the procedures for conduct of state business, or the orders, rules, or regulations of any state agency if strict compliance with the provision of any statute, order, rule, or regulation would in any way prevent, hinder, or delay necessary action in coping with the emergency, unless (i) authority to waive or suspend a specific statutory or regulatory obligation or limitation has been expressly granted to another statewide elected official, (ii) the waiver or suspension would conflict with federal requirements that are a prescribed condition to the allocation of federal funds to the state, or (iii) the waiver or suspension would conflict with the rights, under the First Amendment, of freedom of speech or of the people to peaceably assemble. The governor shall give as much notice as practical to legislative leadership and impacted local governments when issuing orders under this subsection (2)(g).

Are people going to work “peacefully assembling”? “ARTICLE 1, SECTION 4, RIGHT OF PETITION AND ASSEMBLAGE. The right of petition and of the people peaceably to assemble for the common good shall never be abridged.”

This is the opinion of one CAPR member willing to provide expertise on the issue with RCW 43.06.220: “The statute allows the Governor to issue shut-down orders, makes violation of them a crime, and provides for the automatic termination of those orders in 30 days unless extended by leg action, and provides a mechanism for that legislative action. it does not provide any mechanism for legislative termination of the orders.

Per the statue, a succession of orders following a state of emergency proclamation would create a succession of new 30-day durations. Hence, per the statute, once the Governor has declared an emergency, he can issue a series of 30-day orders that lock down the economy in perpetuity.

That is literally what the statute says. Literally the statute gives the Governor the despotic power to put the entire population in house-arrest and shut down the economy forever.

But that effect cannot be constitutional. Hence that literal meaning of the statute cannot be legal.”

I read that the governor is authorized under RCW 43.06.220 to proclaim emergency proclamations, yet I also read in that RCW this section:

(4) No order or orders concerning waiver or suspension of statutory obligations or limitations under subsection (2) of this section may continue for longer than thirty days unless extended by the legislature through concurrent resolution. If the legislature is not in session, the waiver or suspension of statutory obligations or limitations may be extended in writing by the leadership of the senate and the house of representatives until the legislature can extend the waiver or suspension by concurrent resolution. For purposes of this section, "leadership of the senate and the house of representatives" means the majority and minority leaders of the senate and the speaker and the minority leader of the house of representatives.

The law is written in a way that encourages inaction from the legislature rather than requiring action from the legislature after the 30-day limitation, because it only requires a written record in the case of extending a particular proclamation.

Without significant citizen demand otherwise, this could be a permanent set of circumstance with and ever spiraling set of proclamations to micromanage life, liberty, and property in Washington State.  CAPR is investigating what forms of action or remedy might be taken to halt this function of government operating above and outside the rule and spirit of law.


April 15, 2020