An Arvada couple is suing Gunnison County over its public health order that prevents nonresidents, including those with second homes, from entering the county during the COVID-19 pandemic.
"The use of the Property as a single-family residence by two married persons — and no other individuals — creates no plausible harm to the public health, safety, welfare, or morals of Gunnison County,” reads the federal complaint filed by James A. and Joyce K. Cillessen, Arvada residents with a second home in Gunnison.
On April 3, Joni Reynolds, the county’s public health director, issued a public health order requiring nonresidents to leave. People traveling to Gunnison, in turn, were advised not to enter unless it was for an essential purpose or they received an exemption from Reynolds herself.
“The age, condition, and health of a significant portion of the population in Gunnison County places it at risk of serious health complications, including death, from COVID-19,” the order read. The document also asserted that people acclimated to lower altitudes were at greater risk of respiratory complications from the coronavirus and that additional visitors would put a strain on food, healthcare and emergency response resources.
A subsequent April 11 order allowed people to stay in the county if they had already been there for two weeks or longer.
The Cillessens claimed that they only wanted to “quietly enjoy” their house and would “limit interaction with essential businesses as much as possible.” Reynolds denied their request for a waiver to travel to the house. In their lawsuit, the couple claimed a violation of the Fifth Amendment guarantee that “private property [shall not] be taken for public use, without just compensation.”
“This action is a regulatory taking for which Gunnison County must pay just compensation,” said the Cillessens’ lawyer, Theodore A. Wells. He said that while his clients would ask a court to determine how much the county should pay them, the couple was not challenging Gunnison County’s motives, only the “suspension” of their constitutional rights.
“Not every governmental action which impacts someone’s ability to travel to his or her property is a taking,” Wells added. “Here, Gunnison County’s denial of the Cillessens’ right to access, reasonably use and quietly enjoy their property is a regulatory taking for which just compensation is due.”
Helen S. Oh, an attorney in Denver who specializes in constitutional law, believed that the Fifth Amendment's takings clause was not “where the heart of this lies.” She said that the plaintiffs have a much stronger due process argument that the blanket restrictions on nonresidents were not narrowly tailored to a compelling governmental interest.
“This is sort of a closer call because placing these travel restrictions broadly would be unconstitutional,” she said. “It’s not based on individualized testing. Some states have instituted a ban coming from certain hot spots or people coming from those hot spots have to be tested and quarantined, but this public health order actually does seem too broad in that sense.”
Reynolds’s directive to nonresidents garnered wider attention after Texas Attorney General Ken Paxton sent her a letter alleging the order was unconstitutional and discriminatory toward second homeowners. The Associated Press subsequently found that at least nine donors who are property owners in Gunnison County have given Paxton and his wife, a state senator, $2 million for their campaigns.
Deputy county attorney Matthew Hoyt said that he is reviewing the Cillessens’ allegations, but that “we view any lawsuit claiming that the public health orders are somehow unconstitutional as lacking merit, and [we will] vigorously defend against such claims.”
In the lawsuit, the Cillessens point out that the order does not restrict Gunnison County residents who own second homes elsewhere from leaving the county. Wells explained that regardless of their primary residence, everyone should have the constitutional right to access their property, even during a pandemic.
As of April 27, the county allowed nonresident homeowners to enter, as long as they quarantine and isolate themselves for seven days and submit an acknowledgement of that obligation to Reynolds. However, Oh pointed out that as of May 1, Gunnison County allowed retail businesses and salons to open with precautions in place, potentially preserving the disparate treatment.
“Lifting those restrictions inside the county while putting these new barriers in place for anyone outside would just not be narrowly tailored,” she explained. “If they're opening up other things within Gunnison, that could also very easily spread the virus again.”
As of Thursday, the county had 166 COVID-19 cases out of a population of more than 17,000 residents.