U.S. Justice Department 'actively monitoring' Wyo health orders
June 18, 2020
The U.S. attorney for the District of Wyoming has told health-order critics he is monitoring state- and county-imposed restrictions to stop the COVID-19 pandemic but stopped short of saying he found any violations of the U.S. Constitution.
Although the Department of Justice will not “unduly interfere” in states’ health-order judgments, U.S. Attorney Mark Klaassen wrote, “we are actively monitoring,” for constitutional violations.
The exchange occurred amid increasingly politicized debate over government response to the pandemic during which limited-government advocates sought to restrain government action.
Klaassen wrote his comments during the height of the shutdown when state and county health orders, many of which have since expired, were at or near their peak. Such restrictive health orders are emergency measures that may legally curtail constitutional rights “so long as [they] have at least some ‘real or substantial relation’ to the public health crisis,” Klaassen wrote May 12 to two Teton County residents who filed a complaint with his office.
Klaassen quoted case law in his two-page response to Maurice “Jonesy” Jones and Dan Brophy. Jones wrote that a Teton County health district order “basically puts us under house arrest.” He wrote Klaassen that “it may be time to officially charge these Teton County officials with violation of Title 18 Section 242, ‘Deprivation of Rights’.”
A raft of Wyoming citizens worry about the constitutionality of health-order restrictions, including lawmakers who listed an examination of state and county health officers’ emergency powers as an agenda item this year. The Joint Corporations, Elections and Political Subdivisions Committee June 10 stalled a set of bills to limit health officer authority after the legislature’s Management Council, a super-committee, assigned the topic as “Priority #7” earlier this year.
One senator who opposed certain new restrictions on health officers worried about their potential consequences. “I think if we pass this we would kill people unnecessarily,” Sen. Charles Scott (R-Casper) said in committee discussion June 10.
The committee will continue to discuss the issue, members agreed.
Jones first wrote Teton County and Prosecuting Attorney Erin Weisman about orders he said violated constitutional rights. Among other restrictions he targeted Teton District Health Officer Dr. Travis Riddell’s March 30 order that limited gatherings “to only individuals living in the same household.” The order contained exceptions allowing people to perform necessary tasks, such as shopping and work, and was in effect through April 30.
“I believe Teton County has just violated the Constitution’s First and Fourteenth Amendments by depriving me of my right ‘peaceably to assemble’ with whomsoever I choose and violated my right to ‘liberty or property’ without due process of law,” Jones wrote Weisman and Teton County Sheriff Matt Carr on April 4. “We cannot travel (liberty) and we cannot earn a living (property) if confined to our homes.”
Weisman agreed to a meeting, she told WyoFile, until Jones began inviting others. Teton County resident and conservative activist Brophy and Sen. Tom James (R-Rock Springs) were on Jones’ meeting list, she said.
“The meeting was clearly turning into something more than a discussion with a constituent,” she said.
“I cancelled the meeting,” she told WyoFile, writing Jones and Brophy, “I do not believe a meeting will be productive, as it is my position that the Teton District Public Health Order #20-4 comports with the law, as do the State Public Health Orders.”
Brophy responded; “I realize it’s possible you consider us to be gadflies, our views those of cranks and unworthy of consideration.” But Weisman said the planned Zoom huddle “appeared to be moving towards a politically driven discussion.”
Brophy has backed several conservative candidates and lobbied for conservative causes across Wyoming. He and his wife Carleen hold “alt-right” conservative views, according to Brophy’s sister, Arizona Sen. Kate Brophy McGee (R- Phoenix), quoted by the Rose Law Group Reporter. Brophy contributed to his sister’s more-conservative Republican primary opponent in 2018.
Weisman is a Democrat. “I feel really strongly I’ve been able to remove myself from political whims and wishes,” she said of her service to Teton County.
To the health-order critics she wrote: “I am cautious about entering into a political dialogue on this topic, as I serve as legal counsel for Teton County and its officers, in addition to my role as the Prosecuting Attorney. I certainly do not consider you or others to be gadflies, as you termed it.”
Jones saw another violation of the constitution in her actions — “the right of the people … to petition the Government for a redress of grievances” — he wrote, by cancelling a meeting, “you denied us that right,” he wrote. In an email to WyoFile, Jones wrote that he was further researching his options.
Brophy wrote on The Wyoming Net that a single county official appears to be all-powerful.
“The decision of one official, backed by the power of Ms. Weisman’s office, deprived an entire county of its citizens’ ability to live their lives,” he wrote May 13. “No avenues of counterargument, protest, challenge, appeal exist. No self-imposed obligations or promises to explain anything on an ongoing basis exist on the part of the County.”
Health orders and exceptions to them are ultimately approved by Wyoming’s State Health Officer Dr. Alexia Harrist, Weisman said. In the instances when Teton County sought to impose restrictions that were stronger than those required by the state, the local health officer — Riddell — had to secure Harrist’s consent and signature.
“Our process is essentially led by Dr. Riddell,” she said. “We get direction from Dr. Riddell and we essentially put it in legal form,” she said of draft orders and exceptions. “Then it gets sent to Dr. Harrist.”
In several instances, the process involved a back-and-forth discussion between the two health officers, according to information delivered at community health briefings in Jackson. Ultimately, Harrist, guided by the state attorney general, signs the orders and exceptions.
Harrist “is consulting with the attorney general’s office, who is her counsel,” Weisman said. “The attorney general is the entity who is performing the primary legal review of that document.”
“I’m not making decisions [about] what’s in these orders,” she said.
Nevertheless, “I would say we’re not going to submit something that clearly flies in the face of the law,” she said. And, there’s another level of review and responsibility.
“The buck stops with the AG’s office,” Weisman said.
“There is still a misconception Teton County is under stricter orders than the rest of the state,” she said. In fact, Teton county’s health orders are in line with those issued by Harrist statewide, she said. Teton’s Riddell has one advisory in effect that “strongly encourages,” but does not require, that people wear masks in certain public settings.
Jackson mayor Pete Muldoon wrote on Facebook on Monday that “Dr. Riddell declined to issue the [mask] order at the time because he felt that there was a risk of violence … [and] I agreed with him.”
Weisman said Riddell “never pursued face covering as an order.”
U.S. Attorney Klaassen appeared to generally support Teton County’s now-expired, more-restrictive exceptions to state health orders, when he wrote Brophy and Jones on May 12. “Courts can ask whether the orders and other measures are arbitrary or oppressive and whether they allow exceptions for extreme cases,” his letter reads. But they “may not second-guess the wisdom or efficacy of the measures.”
Klaassen promised vigilance, based on a memo penned by U.S. Attorney General William Barr, whose office supported churches that believed COVID-19 restrictions discriminated against them. Klaassen described the federal intervention to Brophy and Jones: “The state health orders at issue in these cases appeared to subject religious organizations to less favorable treatment than similarly situated organizations, implicating a heightened level of constitutional scrutiny.”
Department of Justice support will include scrutiny of discrimination in other arenas, Barr wrote to U.S. attorneys nationwide. “[T]he Constitution also forbids, in certain circumstances, discrimination against disfavored speech and undue interference with the national economy,” Barr wrote April 27. Barr appointed two U.S. attorneys to oversee state and local orders to ensure they are not unconstitutional.
Wyoming’s orders and those issued by counties will be subject to that scrutiny, Klaassen wrote Jones and Brophy. He did not describe seeing an overreach by local or state government, however.
“While we are actively monitoring for similar potential constitutional violations [to those experienced by the two religious organizations], the Department is also being careful not to unduly interfere in the judgment of the various states when it comes to public health, particularly where they are exercising authorities expressly reserved to them,” Klaassen wrote. “Private citizens are free to pursue their own avenues for redress … but the Department is mindful of the legitimate role of the states in responding to the public health challenges posed by COVID-19.”
Brophy appeared to disagree with Klaassen. “The County believes that under state statutory authority, government may ‘take’ away livelihoods, in the interests of protecting community health,” he wrote Klaassen in a letter printed on The Wyoming Net on May 13.
The topic came up in the recent special session when Sen. Cheri Steinmetz (R-Lingle) sought to declare emergency closures “regulatory takings.” The state, she maintained, needs to make these businesses whole for their economic losses because “we have created the situation.”
Government’s role in pandemics engaged lawmakers again at a June 10 meeting of the Joint Corporations, Elections and Political Subdivisions. The committee voted against advancing two bills restricting the power of public health officials, but agreed to discuss the issue at its next meeting, scheduled for Sept. 10-11.
One draft bill, Public health orders-2 would have limited to 15 days all public health orders that close public or private places or limit crowds. Beyond the 15 days, a state health order would have to be ratified by the Legislature to remain in effect and commissioners would have to ratify county orders.
A second bill proposed by Rep. Scott Clem (R-Gillette) would have limited orders to 21 days. Courts would have to approve extensions. Clem told committee members his measure would require health officers to show they were using the least restrictive means to control pandemics when they sought extensions.
He also said he worried about putting police officers under the control of health officers. “There’s really no limitation to what the state health officer can do under state statute,” he said.
Rep. Andi Clifford, (D-Riverton), who represents the Wind River Indian Reservation, hard hit by the pandemic, said she was worried about her constituents. “We need to have our county health officers … at the table,” she said, echoing worries that the bills had not been widely advertised. “I’m very concerned about these bills that politicize health emergencies.”
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