Moscow City Council: Health emergency orders no longer exempt speech, assembly, religious activities

After lengthy discussion Tuesday night, the Moscow City Council unanimously approved an ordinance that does not exempt activities such as speech, assembly and religious activity from public health emergency orders under Moscow city code.

The emergency powers chapter of the code was also amended by the council to provide the mayor the flexibility to include infractions or civil penalties in a public health emergency order — instead of a more serious misdemeanor citation that could result in jail time — if an order is violated. Another amendment made Tuesday to the ordinance includes making clear that the emergency powers ordinance includes all public emergencies, not just public health ones.

“The ordinance passed in March and the amended ordinance being proposed tonight does not expand those powers in any way,” City Supervisor Gary Riedner said. “It doesn’t put in jeopardy any constitutional rights. It is just the matter in which the City Council sets out the procedure by which a local disaster emergency or public health emergency order would be declared.”

While Riedner reviewed authorities vested in the mayor and council by the state and city code, City Attorney Mia Bautista discussed emergency powers versus civil liberties.

“Right now, our amended public health emergency order is not prohibiting communication,” she said. “It’s not prohibiting people from the ability to gather, to practice their religious freedoms. We’re only asking people to maintain 6 foot physical distancing from nonhousehold members based on science, and if they can’t do that, to wear a face covering. We’re not restricting speech or the right to assemble.”

The proposed code changes come almost two weeks after the city’s legal department dismissed misdemeanor charges issued against five people for allegedly violating the city’s amended public health emergency order, or face mask/social distancing order, and resisting and obstructing justice. One of the five charged at the September anti-mask protest in the Moscow City Hall parking lot is former Latah County Commission candidate Gabriel Rench, R-Moscow, who lost the November election to incumbent Tom Lamar, D-Moscow.

In a city news release, the legal team indicated while city code gives the mayor the authority to issue public health emergency orders, exemptions to such an order include “any and all expressive and associative activity that is protected by the U.S. and Idaho Constitutions, including speech, press, assembly, and/or religious activity” unless those are specifically prohibited. September’s event was promoted as a psalm singing event hosted by Christ Church in Moscow. The order states it applies to “every person in the City of Moscow,” but does not specifically provide that the order applies to speech, press, assembly and/or religious activity protected by the U.S. and Idaho constitutions, the release said. Riedner said in the release that the mayor and City Council intended the order to apply to all persons in the city, regardless of the nature of activities.

Bautista said at a Moscow City Council Administrative Committee meeting last week that Moscow police officers “acted in a lawful manner” at the September City Hall event. The emergency powers ordinance vests the mayor with temporary powers in times of emergency for seven days. The City Council can then extend the time of the emergency powers beyond the seven days by resolution. The council most recently extended it to June 9 unless the council terminates it sooner based on improved COVID-19 conditions. On Tuesday, four members of the public spoke on the proposed amendments to the city code before the council deliberated on it for about 50 minutes. The feedback was mixed.

Councilor Gina Taruscio said these decisions are not taken lightly or made quickly. “This isn’t government overreach,” she said.

Mayor Bill Lambert said emergency powers should only be used in rare events like the COVID-19 pandemic or natural disasters.

“Emergency powers should be a very rare thing,” he said.

Garrett Cabeza can be reached at (208) 883-4631, or by email to gcabeza@dnews.com.