The U.S. attorney for the District of Wyoming is monitoring state- and county-imposed health orders aimed at containing the COVID-19 pandemic, but he 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 notice came amid increasingly politicized debate over government response to the pandemic during which limited-government advocates sought to restrain restrictions.
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. Restrictions were emergency measures that 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 response to Maurice “Jonesy” Jones and Dan Brophy. Jones wrote that a Teton County health district order “basically puts us under house arrest” and that “it may be time to officially charge these Teton County officials with violation of Title 18 Section 242, ‘Deprivation of Rights.’”
Many Wyoming citizens worry about the constitutionality of health-order restrictions, including lawmakers who put a review of state and county health officers’ emergency powers on an agenda this year. The Joint Corporations, Elections and Political Subdivisions Committee on June 10 stalled a set of bills to limit health officer authority after the Legislature’s Management Council assigned the topic as “Priority #7” earlier this year.
One senator who opposed the 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.
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 order of March 30 limiting gatherings to individuals in the same household. The order contained exceptions allowing people to perform necessary tasks, such as shopping and work, and was effective 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 with Jones until Jones began inviting others, including Teton County resident and conservative activist Brophy and Sen. Tom James, R-Rock Springs, she said.
“I am cautious about entering into a political dialogue on this topic,” she wrote critics, “as I serve as legal counsel for Teton County and its officers, in addition to my role as the Prosecuting Attorney.”
Jones saw the cancellation as another violation of the constitutional right “to petition the Government for a redress of grievances.” In an email to WyoFile, he said he was researching further options.
On The Wyoming Net, Brophy on May 13 wrote: “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.”
Health orders and exceptions to them are ultimately approved by Wyoming’s State Health Officer Dr. Alexia Harrist, Weisman said. In instances when Teton County sought to impose stricter measures than what the state required, health officer Riddell had to secure Harrist’s consent and signature. In several instances, that process involved back-and-forth discussions between the two, according to information delivered at Jackson community briefings. Ultimately, Harrist, guided by the state attorney general, signs orders and exceptions.
“The attorney general is the entity who is performing the primary legal review” of such orders, Weisman said. “I’m not making decisions [about] what’s in these orders.”
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, she said: “The buck stops with the AG’s office.”