Bill description: House Bill 5 would provide businesses and other organizations immunity from civil liabilities "for acts or omissions made in good faith" during a declared coronavirus emergency if they "make a good faith effort to comply with a statute, rule, or lawful order of a government entity."

Rating: -7

Analyst’s note: House Bill 5 makes one change to RS28049C1. It deletes the phrase, "arising from the exposure to or the transmission of the coronavirus" as a limitation on the applicability of the liability. 

This change does not change the rating or analysis of the bill, because the fundamental problems negatively affecting the freedom of Idahoans remain.

Does it give government any new, additional, or expanded power to prohibit, restrict, or regulate activities in the free market? Conversely, does it eliminate or reduce government intervention in the market?

House Bill 5 offers certain legal protections to public and private entities. Specifically, it gives them immunity from civil liability "for acts or omissions made in good faith" during a declared coronavirus emergency only if they "make a good faith effort to comply with a statute, rule, or lawful order of a government entity." The bill does not clarify what constitutes a "lawful order" or a "government entity."

This selective application of immunity is used as an inducement to elicit compliance with a wide range of mandates, including those issued by entities of questionable authority and dubious jurisdiction, like a public health district. 

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House Bill 5 states, "Noncompliance with guidelines or recommendations related to a declared coronavirus-related disaster or emergency alone shall not be used to establish civil liability." The inclusion of the word "alone" indicates that "noncompliance with guidelines or recommendations" can still be considered one factor in establishing civil liability.

The broad purpose of the bill is to elicit compliance with statutes, rules, and lawful orders. This additional language regarding guidelines and recommendations serves as an inducement for businesses and individuals to comply with suggestions as well. This is another expansion of government power. 

It should be noted that the bill says nothing about who will issue the guidelines or recommendations. Will they include those issued by private entities or the federal government? Without any statutory clarification, it is impossible to say definitively, which leaves the definition in a state of ambiguity and likely to require future litigation to settle. 

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Does it increase barriers to entry into the market? Examples include occupational licensure, the minimum wage, and restrictions on home businesses. Conversely, does it remove barriers to entry into the market?

If a business wants to obtain the immunity from civil liability promised by House Bill 5, it must, among other things, comply with mask-wearing and social distancing mandates. This compliance presumably includes not just a business's employees but its customers as well. Imposing such enforcement efforts on businesses is a way for the government to avoid having to enforce its own rules and mandates. The function of a business is not to serve as a proxy for the state. 

Requiring businesses to enforce a host of rules and mandates on both employees and customers is a significant barrier to the free market, yet this enforcement is a condition of receiving immunity.

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Does it in any way restrict public access to information related to government activity or otherwise compromise government transparency or accountability? Conversely, does it increase public access to information related to government activity or increase government transparency or accountability?

By granting special immunity to cities, counties, school districts, other units of local government, colleges, universities, and other institutions of higher learning, House Bill 5 substantially lessens government accountability for the harm it may contribute to or cause.

[A previous version of this bill (RS28049) also granted immunity to "the state of Idaho and any agency or subdivision thereof," but did not explicitly include colleges, universities, and other institutions of higher learning.]

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Does it violate the principle of equal protection under the law? Examples include laws that discriminate or differentiate based on age, gender, or religion or which apply laws, regulations, rules, or penalties differently based on such characteristics. Conversely, does it restore or protect the principle of equal protection under the law?

The fundamental purpose of House Bill 5 is to create two classes — one of entities that comply with mask-wearing and social distancing mandates, and one of those that do not — and then treat these classes differently under the law. House Bill 5 does not try to create a statute that requires mask-wearing and social distancing. Rather, it attempts to use inducements to businesses and other organizations to achieve a similar purpose.

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Does it directly or indirectly create or increase penalties for victimless crimes or non-restorative penalties for nonviolent crimes? Conversely, does it eliminate or decrease penalties for victimless crimes or nonrestorative penalties for non-violent crimes?

A business that does not adhere to certain regulations or guidelines could face a financial penalty: being financially liable through the civil justice system should a customer contract the virus. House Bill 5 makes its protections from such liability contingent on compliance. It thus effectively penalizes those businesses and individuals who make health and business decisions that may be at odds with the preferences of government bureaucrats and politicians. 

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Does it violate the principles of federalism by increasing federal authority, yielding to federal blandishments, or incorporating changeable federal laws into Idaho statutes or rules? Examples include citing federal code without noting as it is written on a certain date, using state resources to enforce federal law, and refusing to support and uphold the Tenth Amendment. Conversely, does it restore or uphold the principles of federalism?

By including the language "a statute, rule, or lawful order of a government entity," without any further limitations or definitions, House Bill 5 implicitly includes statutes, rules, and lawful orders issued by the myriad agencies and departments of the federal government, and requires compliance with them as well. This incorporates a host of rules and mandates, including those not yet issued, into the list of demands with which Idahoans must comply to obtain the immunity offered by the bill.

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