Pandemic Planning and the Courts (if they say so…)

The Guidelines for Pandemic Emergency Preparedness Planning: A Road Map for Courts dated March 2007 had been made public and the 32 page PDF can be found here.  It was put together by the Task Force of Pandemic Preparedness Planning for the Courts. 

An open letter from Chief Judge of the Maryland Court of Appeals addresses the intent of the plan.


One of the fundamental things I define myself by is being a Strict Constitutionalist.  I believe that the US Constitution and The Bill of Rights are nothing less than Sacred Documents, sanctified by the very blood men and women have spilled for over two and a quarter centuries in defense of them.  Given the level of involvement in Law Enforcement that I have both historically and currently, it would be safe to assume that I take the concept of the Rule of Law very seriously indeed. That said, my first reaction after my initial skim of this report was literally not knowing whether to laugh hysterically or beat my head against the wall until it was a Bloody Pulp.

My second reaction, upon reading it in a more deliberative manner, could only be described as a break with reality.  This report came on the heals of my finishing the HCWs in a CMI entry found here, and the two papers mixing and merging in my mind made me feel like I had either fallen into that proverbial Rabbit Hole or frantically looking around for it to dive into.


On February 1, 2007, the U.S. Department of Health and Human Services’ Centers for Disease Control and Prevention (CDC) issued guidance on several nonpharmaceutical measures that might be taken to reduce the harm caused by an influenza pandemic. The guidance introduced, for the first time, a Pandemic Severity Index, which uses a case fatality ratio as the critical factor in categorizing a pandemic’s severity. The index, available at, is modeled after the five levels of severity used for hurricanes and designed to help officials determine whether to take steps such as advising employers to promote telework, closing schools, or limiting public gatherings. It ranks the severity of a pandemic by the number of fatalities it causes, ranging from a Category One pandemic (90,000 deaths) to a Category Five pandemic (1.8 million deaths).

As the chart from the CDC that this plan draws upon clearly shows the attack rate (% of population that will become infected) is set at 30%, although they were intellectually honest enough to state it was an assumption.  Also, in fairness, the Category 5 CFR (Case Fatality Ratio) starts at 2%, since they use the greater than or equal to symbol.  The problem comes in when plans use these figures as the Worst Case Scenario, not the base parameter of Worse Case.  This is important because it could be magnitudes worse.

What the Courts plan fails to address is if a PanFlu event is worse than the 30% attack rate with a 2% mortality.


The Task Force was charged with creating a framework that could be used by courts in each state to develop pandemic emergency plans. In response, the Task Force’s planning process has been approached from four perspectives: (1) preserving the continuity, integrity, and independence of the judicial process (i.e., the rule of law) during a pandemic emergency; (2) substantive legal issues that will likely arise; (3) interagency relationships and coordination that will be needed, particularly among the courts and state and local public health agencies; and (4) the court as a workplace.

There will (potentially) be a point where the courts will be rendered inoperable and this plan so many words on paper.  Should the CFR present at much above 5% society will begin to crumble and the courts along with it. A Pandemic Plan for the courts would have been much better served had it also addressed issues outside of maintaining status quo. 


5. Courts During a State of Emergency

The constitution and implementing legislation in most states require that the court system operate on an ongoing basis. Only recently have a few states authorized the temporary closure of a local court in an emergency; in those instances the closure has been contemplated as temporary and of very brief duration. Most court COOP planning has included the identification of mission-critical functions (i.e., functions that the court is constitutionally and/or statutorily required to perform) and the timeframe for their performance. For example, such planning would include the mission-critical functions, in priority order, that must be performed given a disruption of 1 day, a disruption of more than 1 day but less than 1 week, and a disruption of more than 1 week but less than 1 month. Similar to COOP planning, a pandemic entails identifying how mission-critical functions of the court can be performed. However, it also requires that the court be able to address the issues that arise as a result of the pandemic, taking into consideration the potential protracted period of disruption.
As a start, judicial system officials should address the following:

???? What are the requirements under the state constitution and the state statutes for declaring a state of emergency?
???? What effect does a declaration of emergency have on court operations?
???? What are the immunities of government actors during an emergency?


Well, enough for today, I will pick this back up again, so much to say that it’s better to split it into digestible chucks.

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