Sussex County Delaware

Guest Commentary:
House Bill No. 377

Guest Opinion ...

Federal Funding Doesn't
Justify House Bill 377

Guest Commentary

Editor's Note: Matthew Opaliski is a Greenwood resident with an eye on local and state politics and an interest in running for elected office in the future.

Matthew Opaliski, Guest Commentary

Recently at a public hearing to discuss House Bill 377, the Delaware Emergency Health Powers Act, it became painfully obvious as to why there is an undeniable rush by the Governor's Office to pass this legislation -- Federal Dollars.

There is federal funding available to states for use to defend against or deter Bio-Terrorism measures. There are two levels of funding that Delaware could qualify for, and the amount of federal money is contingent upon whether or not we as a state adopt legislation that falls under prescribed federal guidelines.

The push is on to pass House Bill 377 because Delaware stands to gain $7,263,000 if it meets those guidelines. If Delaware fails to pass this legislation, which would bring it into compliance with those guidelines, by April 15, 2002 it would receive only $1,300,000, therefore losing out on a majority of the funding. The difference of $5,963,000 depends on passing the Bill, or something similar to it.

Whether or not the state receives federal funding should not be the deciding factor when consideration is given to any new legislation, including this Bill. Delaware lawmakers are in a position where they should realize that if they pass legislation based on receiving federal funds, they are allowing themselves to fall victim to extortion.

Not only that, it would place every member of the General Assembly who allowed their vote to be swayed by a special interest, that interest being those federal funds, in violation of their sworn oath of office. Add to that the fact that several provisions contained in this proposed legislation would place the rights of all Delawareans, rights that are guaranteed by the U.S. and Delaware Constitutions, in jeopardy. Placing those rights in jeopardy is also a violation of the oath of office taken by members of the General Assembly. That oath is as follows:

"I, John/Jane Doe, do proudly affirm to carry out the responsibilities of the office of State Representative/State Senator to the best of my ability, freely acknowledging that the powers of this office flow from the people I am privileged to represent. I further affirm always to place the public interest above any special or personal interests, and to respect the right of future generations to share the rich historic and natural heritage of Delaware. In doing so I will always uphold and defend the Constitutions of my Country and my State, so help me God."

Based on the 2000 decennial census, which listed Delaware's population at 783,600, and the known amount that Delaware stands to gain by passing this legislation, that being $5,963,000, I submit for your consideration the following notion -- at the cost of $7.60 per resident, your rights may very well be up for sale, courtesy of the state.

I realize that I personally cannot equal the ability to articulate the legalese of this proposed legislation that is possessed and demonstrated by Matthew Denn, the Bill's author and an attorney representing the Governor's Office. However, despite my admitted shortcomings in that area, that fact may prove to be useful because unlike Mr. Denn, who appears to rely solely on the actual text of this Bill when making arguments in its favor, I'm reading between the lines, as well. Granted, there is nothing printed in the vacant space between the lines, but there are numerous issues contained within that are begging to see the light of day. With my trusty decoder ring in hand, let's discuss just one of them.

Some concern was raised at the public hearing in reference to the right to keep and bear arms and how this legislation could possibly infringe upon that right, one that is clearly defined in both the United States and Delaware Constitutions, lest we enter a debate on the 2nd and 20th amendments, respectively.

Mr. Denn quickly dismissed those concerns as unfounded because the proposed legislation would place no new restrictions on guns. "The word 'firearms' does not appear," he stated. Mr. Denn's statement is absolutely correct, because unlike the Model State Emergency Health Powers Act that HB 377 is based on, which specifically mentions firearms, Delaware's version does not.

However, let me point out a small portion of this proposed legislation that would amend Title 20 of the Delaware Code by adding a new subchapter titled "Public Health Emergencies". In that new subchapter, the following partial text of a statute can be found:

3135. Access to and Control of Facilities and Property -- Generally.

If the Governor has specifically designated a state of emergency declared pursuant to Section 3115 of this Title as a "public health emergency", the public safety authority may exercise, for such period as the state of public health emergency exists, the following powers concerning facilities, materials, roads, or public areas:

a. To procure, by condemnation or otherwise, construct, lease, transport, store, maintain, renovate, or distribute materials and facilities as may be reasonable and necessary for emergency response, with the right to take immediate possession thereof. Such materials and facilities include, but are not limited to, communication devices, carriers, real estate, fuels, food, and clothing.

As Mr. Denn pointed out, the term "firearms" does not appear in the text with the list of items that could be taken. What does appear is the term "but not limited to", thus making the fact that the term "firearms" does not appear, as being specifically excluded from a list of items that could be taken, does in fact make them included with items that could be taken. To put plainly, if something is not excluded, it is included.

Memo to Mr. Denn and the Governor's Office: Those concerns that you conveniently dismissed as unfounded have just been found.

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