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Judge: Guam health department disregarded fundamental civil liberties

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HAGÅTÑA (The Guam Daily Post) — The Igros family’s fundamental civil liberties have been disregarded by the Department of Public Health and Social Services, according to a Superior Court of Guam decision.

Guam Customs and Quarantine Agency officer and Dededo resident Eugene Igros filed a petition against DPHSS on behalf of his children ages 13 and 8. He and his family were forced into a government quarantine facility after arriving from California, a situation Igros summed up for the court as being imprisoned.

Judge Elyze Iriarte, in a decision, stated concerns that "DPHSS continues to quarantine individuals without having faithfully abided by Guam law.”

“It is clear that the governor has mandated the quarantine of the Igros family and others, overriding any notion of a voluntary quarantine for these persons,” she pointed out.

Guam law does have procedures allowing for individuals to be quarantined.

“DPHSS utilized this process before but appears to have abandoned it now — leaving the presently quarantined individuals in the dark about their due process rights,” Iriarte stated.

“DPHSS has not proactively petitioned the court under section 19605(b); but rather waited until it was prompted by the Igroses’ frustrations at being quarantined without choice. By choosing not to follow Guam law, DPHSS has disregarded the Igroses’ fundamental civil liberties.”

Title 10, Chapter 19 of Guam Code Annotated, titled Emergency Health Powers, provides for the quarantine and isolation of individuals to safeguard the community but also requires Public Health to petition the court.

Igros was represented by attorney Rachel Taimanao-Ayuyu.

“This is a landmark case,” Taimanao-Ayuyu said. “For the first time, we have heard our third branch of government say, 'Enough of this. You know, government, if you’re going to exert that kind of overwhelming power, you’re going to have to do it (within) the safeguard of our laws.’”

She said Guam law is clear in that there’s a process Public Health should follow when quarantining residents.

“The court, as we have always insisted, is the equalizer when the government tries to exert additional power over individuals. We were very, very happy to see the outcome, that the court understood this and understood that the protections of a person’s due process...no one is above that,” she stated.

A hearing was held virtually on Friday. Igros contended his family met all the quarantine guidelines that were in place prior to their July 26 trip. There was a change in the guidelines, however. On Aug. 21, DPHSS mandated a 14-day quarantine at the government facility for all passengers arriving into Guam.

 

Government school buses are parked at the airport's arrivals area on March 31 to transport passengers who meet the local government's expanded quarantine regulations. The Guam Daily Post file photo

Igros said upon arrival at the A.B. Won Pat International Airport earlier this month, he felt he did not have the option to decline signing the voluntary quarantine document.

Igros also told the court he was experiencing stress caused by the quarantine. Various residents who’ve been held in quarantine have noted they aren’t allowed out of the room for the entire quarantine period. Food is delivered to their rooms and some have said they can’t even step out onto their balconies for fresh air.

The decision took Igros’ arguments on mental health and other concerns into consideration.

“In the spirit of mental health and well-being, the court orders DPHSS to explore opportunities for the Igroses to exercise safely outside of their room and to afford them the opportunity to retrieve clean clothes or for them to wash their clothes,” the decision states.

Additionally, the quarantine of the Igros family doesn’t need to continue in a government facility if they test negative for Covid-19.

The court noted that DPHSS committed to test the Igros family on their 12th day of quarantine with results expected within 24 hours.

“If those test results show they are negative for Covid-19, they have a reduced risk of transmission to the community,” the decision states. “Continued quarantine in a government facility would not be reasonably necessary to reduce such a risk and they should be allowed to spend the rest of the quarantine period at home.”

The court also ordered DPHSS to pay the Igroses’ legal fees.

“DPHSS’ procedural defects have amounted to a violation of the Igroses’ due process rights to counsel and they have now been required to retain private attorneys to represent them,” the court stated. “For this due process violation, DPHSS must pay the Igroses’ attorney’s fees and costs.”

The Office of the Attorney General could not be reached for comment.

DPHSS special projects coordinator Janela Carrera issued a statement following the court's decision.

The department did not address the court's concerns about DPHSS’ violations.

"We are pleased that the court recognizes the important role that quarantine plays in combating Covid-19 in our community and that the vast majority of people recognize its benefits to the health and safety of their families and loved ones," stated Carrera. "The Department of Public Health and Social Services is guided and driven by principles that serve to protect the health and safety of the public by taking decisive actions and preventive measures based on locally and federally established policies, procedures, and laws. While we empathize with the individual needs of those undergoing quarantine, DPHSS must also protect its community from a larger, invisible threat that could potentially devastate Guam’s already fragile healthcare system."

November 2020 pssnewsletter

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