After some legal banter between Gunnison County and the Texas Attorney General, it seems that Gunnison has likely avoided any litigation regarding its public health order.
Last month, Gunnison County received a letter from the Texas Attorney General’s Office challenging the constitutionality of the county’s coronavirus public health orders, which prohibited non-resident homeowners from entering the county. The orders were put in place out of concern for lack of supplies, the fact that the county has only a 24-bed hospital with no ICU and one of the highest rates per capita of coronavirus in the nation, said Gunnison County public information officer Andrew Sandstrom of Gunnison County. The prohibition on non-resident homeowners was included in the county’s fifth, sixth and seventh public health orders, but now, with the eighth amended order, the county is allowing non-resident homeowners back into the county with certain conditions. The county is moving toward reopening — which is subject to change — but will continually monitor the numbers , Sandstrom said.
The county shut down to outsiders came from concerns over how 8,700 homes in the county are listed with an out of town mailing address. With a population of approximately 16,000 people, the population could easily double, Sandstrom said.
And with limited hospital facilities, concerns about the ability of non-residents with respiratory issues coming to higher elevation, and a reliance on tertiary medical centers, the county made the decision to keep out non-residents, according to Sandstrom.
After the prohibition was put in place, Texas Attorney General Ken Paxton issued a letter to Joni Reynolds, the director of the Gunnison County Department of Health and Human Services, on April 9. The letter argued the fifth amended order unconstitutionally discriminated against non-resident homeowners by demanding they vacate Gunnison County, according to a press release from the attorney general’s office.
The county’s order claimed non-resident homeowners should be excluded from the county “because they may use local resources, such as grocers and healthcare services, and while it allows non-resident homeowners to apply for an exemption to this restriction; there is no criteria for judging an exemption or to whom it may apply,” according to the release.
“Resident homeowners, on the other hand, are under no such prohibition,” said special counsel to the Texas attorney general David Hacker in a letter to the county. The letter goes on to say attempts were made by the order to justify “disparate treatment by asserting” that non-resident homeowners from lower elevations could face a “greater risk of complications” from the coronavirus.
“As Americans, we all must work together to protect ourselves, and each other, from the threat posed by COVID-19. But as we face this challenge on behalf of our constituents, we as public servants must be careful to do so within the boundaries drawn by our Constitution,” the letter states.
On April 10, the Gunnison County Attorney’s Office, which represents the public health director, sent a letter of response to the Texas Attorney General’s Office.
The letter states that Texans “in particular” have a history of traveling to the county for vacations and recreation and that the county welcomed the visitors.
The county has taken steps authorized under Colorado law to protect the public health, “although some of those steps are undoubtedly unpopular” and the county considered them “unfortunately necessary,” according to the letter.
The letter continues with the Gunnison County Attorney’s Office asking the Texas Attorney General’s Office to identify their clients and the legal authority behind the state AG’s request. The letter added that Colorado law provided an “exclusive remedy” for those allegedly aggrieved by a Colorado county public health order.
The letter states the Supreme Court has decided that the lockdown was done in exercise of police power, “and the means to be employed to promote the public safety are primarily in the judgment of the legislative branch of the government, to whose authority such matters are committed, and so long as the means have a substantial relation to the purpose to be accomplished, and there is no arbitrary interference with private rights, the courts cannot interfere with the exercise of the power by enjoining regulations made in the interest of public safety which the legislature has duly enacted.”
And in terms of non-residents seeking eligibility to remain in the county, under the provisions, a non-resident could possibly remain in the county if the public health director determines that it is consistent with the county’s order and health objectives. “Indeed, the Public Health Director has already granted the majority of the exemption requests she has received.”
“More importantly, residents of Colorado who live outside of Gunnison County are restricted in the same manner as residents of other states. States that ‘regulate even-handedly to effectuate a legitimate local public interest’ do not violate the Constitution,” the county letter states.
The Governor of Texas imposed freedom of movement and travel restrictions on certain out-of-state residents, but “apparently allowing complete freedom to other visitors,” according to the county letter, and mentions the Texas Attorney General recognized that Texas law allows municipal and county officials to control people’s movement and occupancy of premises in local disaster areas.
“This is precisely what Gunnison County is attempting to accomplish with its Order under Colorado law,” the letter states, adding the county will welcome the return of non-residents once the pandemic is over, including Texas citizens.
“But in the face of the worst pandemic in over a century, in which almost a hundred thousand people around the world have succumbed to this disease (including almost 200 people in Colorado and a similar number in Texas), we can and will continue to employ the authority granted to us by the Constitution of the United States, the Constitution of Colorado, and Colorado law to protect the health, safety and welfare of Gunnison County’s citizens, visitors and property owners,” the letter states.
After the official response was sent to the Texas Attorney General, there has been no continued discussion on the matter, Sandstrom said.