HOUSE OF REPRESENTATIVES

152nd GENERAL ASSEMBLY

HOUSE BILL NO. 245

AN ACT TO AMEND TITLE 20 OF THE DELAWARE CODE RELATING TO EMERGENCY MANAGEMENT.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1. Amend § 3115, Title 20 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:

§ 3115. General authority of the Governor.

(a) The Governor shall be responsible for addressing the dangers to life, health, environment, property or public peace within the State presented by emergencies or disasters, and to this end shall have general direction and control of DEMA and shall be responsible for carrying out this chapter. In the event of an emergency or disaster beyond local control, the Governor may assume direct operational control over all or any part of the emergency management functions within the State.

(b) In performing the duties of the Governor under this chapter, Except as provided in § 3115(c), only the Governor , in performing the duties in this chapter, may issue, amend and rescind all necessary executive orders, emergency orders, proclamations and regulations, which shall have the force and effect of law , except as authorized by § 10119 of Title 29 of this Code .

(c) In addition to the powers conferred upon the Governor by this chapter, a state of emergency may be proclaimed by emergency order of the Governor upon a finding that an emergency or disaster has occurred or that such occurrence or threat of that occurrence is imminent.

1. The state of emergency shall may be effective for a period of not longer than 120 days and may be renewed once for a period not exceeding 60 days continue until unless the Governor finds that the threat or danger has passed or the emergency or disaster has been dealt with to the extent that conditions necessitating a state of emergency no longer exist and terminates the state of emergency by subsequent order.

2. No state of emergency can continue for more than 30 days without being renewed by the Governor. A state of emergency order may not exceed 180 days under paragraph 1 of this subsection without a finding from the Governor that a second renewal order is required by an ongoing emergency or disaster and any second or subsequent renewal order shall require approval of such renewal order by the General Assembly. Amendments to any second renewal order or subsequent renewal order shall require approval by the General Assembly.

3. The General Assembly shall meet at the call of each Chamber’s presiding officer or at the call of the Governor to consider any second or subsequent renewal order or amendment to such orders for as long as the state of emergency order continues in effect. The General Assembly may approve a second or subsequent renewal order for not more than 90 days each. Should the General Assembly fail to approve a second or subsequent renewal order required by this paragraph, then the state of emergency order shall terminate at the end of the order’s current term.

4. With the consent of the Senate Pro Tempore and the Speaker of the House, approval of renewal orders by the General Assembly under paragraph 3 of this subsection, may be suspended under such dire emergency or disasters where it is not possible, either in person or virtually, to convene a quorum of both Houses of the General Assembly. Should this paragraph be utilized, the General Assembly shall thereafter meet, either in person or virtually, as soon as possible to take action required under paragraph 3 of this subsection.

5. All orders and renewal orders and amendments to such orders issued under this chapter shall indicate the nature of the emergency or disaster, the geographical area or areas threatened, and the conditions which have brought the emergency or disaster about or which make possible termination of the state of emergency. The Governor may terminate any state of emergency order or subsequent renewal order at any time.

6. An order terminating a state of emergency shall describe the reasons for termination, and shall be disseminated as promptly as is practicable by means calculated to bring its contents to the attention of the general public and, unless the circumstances attendant upon the emergency or disaster prevent or impede, shall be promptly logged with DEMA. Emergency action ordered by the Governor in accordance with the Governor’s constitutional and statutory authority shall not be invalidated because of any failure to comply with the technical requirements for the logging or filing of emergency orders.

7. Any non-weather related emergency order issued within 6 months of the termination of a prior emergency order and based upon substantially similar reasons shall be invalid unless such new emergency order is approved by the General Assembly.

8. Any non-weather related emergency order that requires the closure of any business, religious facility, or non-profit facility must specifically delineate which type of entities and facilities are to be closed.

Section 2. This Act shall become effective immediately upon the ending of the Governor’s term of office next occurring after the enactment of this Act.

SYNOPSIS

The Constitution of the State of Delaware creates 3 branches of State Government, the Legislative, Executive, and Judiciary, each having certain delineated responsibilities or powers within a framework that limits and separates the powers of each branch from the other. The doctrine of separation of powers is a fundamental part of constitutional government. The Justices of the Delaware Supreme Court have, in quoting William Blackstone, recognized that "whenever the [legislative and executive] powers are united together, there can be no public liberty". In re Request of Governor for Advisory Opinion, 722 A. 2d 307 (1998).

This Act's purpose is to require the legislative branch to reasonably restrict or confirm the executive branch in its exercise of emergency powers, thereby maintaining a balance or separation of powers between the executive and legislative branches of state government.

This Act recognizes the statutory authority of the Governor to act in the event of an emergency or disaster. During protracted emergencies and disasters, particularly those lasting more than 180 days, good governance requires participation by the General Assembly in person or virtually to approve extensions of Emergency Orders. This approval requirement may be waived only when it is not possible for both houses of the General Assembly in person or virtually to convene a quorum. The Governor retains the authority to terminate Emergency Orders without approval when the emergency or disaster has passed. Any new non-weather related emergency order issued within 6 months of the termination of a prior order and based upon substantially similar reasons shall be invalid unless approved by the General Assembly. Additionally, any non-weather related emergency order that requires the closure of any business, industry, religious, or non-profit facility must specifically delineate which type of business or facilities are to be closed. The time limits proposed by this Act are similar to those limits applicable to emergency regulations under the Administrative Procedures Act, 29 Del. C. § 10119.

This Act shall become effective immediately upon the ending of the Governor's term of office next occurring after the enactment of this Act.