Brad Nagel, a medical assistant with Emerg+A+Care, takes a sample at a coronavirus mass-testing session in Jackson on May 28, 2020. (Angus M. Thuermer, Jr./WyoFile)

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.

‘Gadflies’ and ‘cranks’

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.”

The Buckeye Institute, a non-partisan, nonprofit institute promoting the free market, outlined Daniel Brophy’s qualifications as a board member following his appointment to the board in 2015. (Screengrab/Buckeye Institute)

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.

Chain of command

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.

Moses Hasenauer, a Cheyenne resident and Tea Party activist, confronts Gov. Mark Gordon at an April 20, 2020, protest against health orders. (Mike Vanata/WyoFile)

“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.”

Legislating limits

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.

Support independent reporting — donate to WyoFile today

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.”

Angus M. Thuermer Jr.

Angus M. Thuermer Jr. is the natural resources reporter for WyoFile. He is a veteran Wyoming reporter and editor with more than 35 years experience in Wyoming. Contact him at angus@wyofile.com or (307)...

Join the Conversation

9 Comments

Your email address will not be published. Required fields are marked *

  1. Wouldnt it be nice if the US District attorney spent equal time catching and prosecuting the homophobes that vandalized a young girls vehicle under the hate crimes act. Just saying

  2. “The First Amendment guarantees “the right of the people peaceably to assemble”.
    The 14th Amendment mandates “nor shall any State deprive any person of life, liberty or property, without due process of law”.
    The Wyoming Constitution, Declaration of Rights, Sec. 7 declares, “…Absolute, arbitrary power over the lives, liberty and property of freemen exists nowhere in the republic, not even in the largest majority.”

    Is it peaceably to assemble when you are spreading a virus that can kill? Is killing peaceable?
    If I am forced to stay home because the State or Federal government does not mandate masks or face coverings, then I am being deprived of my life and liberty.

    I keep hearing that older people and those with preexisting conditions are staying home – then I am being denied my life and liberty. So who life is more important – those that do not care about their neighbor and are spreading the virus that kills? Or those that are doing their best not to spread the virus.

  3. Down here in Arizona the COVI epidemic is in full eruption. Why? Not because of a cautious, too cautious according to many, reopening of business as the COVI seemed to be under control. Because the streets have been filled with tens of thousands of unmasked no social distancing BLM protestors that also riot and loot. Every night on all the news channels show the streets flooded with protestors and the only ones wearing masks are the reporters.
    The worst is yet to come down here.

    1. Yes, it is much better to loot businesses the way the rich white boys do it on Wall St. First gather a cabal of clandestine investors to form a private equity firm, making sure it is hidden deep in a maze of shell corporations.

      Then choose a target business in a weakened condition, fire its employees, and strip it of assets. Sell off the assets and stash the proceeds in a Cayman Island’s secret bank account to avoid paying US taxes.

      Viola! Another successful no-risk looting without the messy task of throwing a trash can through a plate-glass window.

  4. No surprises here. Given that a US Attorney in Wyoming has a work load significantly less than any ditch rider or brand inspector when it comes to enforcing anything, given Wyoming is oversaturated with armchair Constitutionalists and rubythroated faux patriots , and given a state health officer has little if any regulatory teeth to bite down hard on anyone’s duff, we witness yet another tempest in a crock pot.

    There is nothing written on any parchment or case law and creed that says you have the right to endanger my life and health, nor transmit a potentially fatal pathogenic onto a public concourse because you’re short of walking around money and too full of Cowboy Pride to wear a facemask and stay 6 feet away from fellow hominids. Folks are implicitly guaranteed the absolute rights to be arrogant, obstinate and ignorant so much so that needed not be written down in the founding documents. The Code of the West might have something in it to mitigate those apparitions , but common Respect serves us all, The state health orders were not conjured in a vaccuum nor do they impose any unreasonable conditions.

    Health trumps wealth . Public health trumps private enterprise during pandemics. A significant number of Teton County residents seems to be hallucinating. And lordie was there ever a huge hatching of Gadflies here in Wyoming in 2020 , right alongside all those pesky Miller moths. In an unusual and abnormal year, Wyoming rises to behave unusually and abnormally … Oh by the way , the SARS CoV-2 virus is just getting going…

  5. It is one thing to be macho about your health but quite another thing to endanger others. I think I know where the founding fathers would stand on that. Politics and health should not mix.

  6. I wish Angus had space to list my entire letter to Teton County Commissioners. A VERY pertinent excerpt is;
    “The First Amendment guarantees “the right of the people peaceably to assemble”.
    The 14th Amendment mandates “nor shall any State deprive any person of life, liberty or property, without due process of law”.
    The Wyoming Constitution, Declaration of Rights, Sec. 7 declares, “…Absolute, arbitrary power over the lives, liberty and property of freemen exists nowhere in the republic, not even in the largest majority.”
    The Miranda Decision: United States Supreme Court, 1966. 384 US 436, page 491, sets this principle in stone; “Where rights secured by the Constitution are involved, there can be no rulemaking or legislation which would abrogate them.” Miranda is definitive!”
    The Constitution is our “rule of law”. Without it we are just another tin-horn-dictatorship which governs at the whim of whoever is in charge at the time. BE CAREFUL! Some day your Party may be in the minority.

  7. Ole Daniel Brophy who claims to know so much about the Bible and the Constitution cannot seem to get either of them correct. Danny Boy is arguing that the Bible trumps the constitution when nothing could be further from the intent of the Constitution even though these christians want to make it so and have for too much of American history. Danny would like Democrats to be treated like Indigenous Peoples and forced into christian boarding schools and robbed of our freedoms.

    Then mix in Mark Klaassen whose direct boss Billy Barr is violating the Constitution at the behest of his impeached boss Donald Trump. It has be to hard for Mark K to keep a straight face arguing for the rule while his bosses walk all over it and obstruct justice on a daily basis. After he finally realized he is a US Attorney and does not have any jurisdiction over the Wyoming Constitution as the laws passed to manage this pandemic are not “arbitrary*” in nature and therefore the state health laws are both constitutional according to the US and Wyoming Constitutions. Mark would better serve the taxpayers by siding against his corrupt bosses before he tries to boss duly elected county attorneys that are already trying to fend off cash rich dolts that are trying to corrupt our republic in the name of their god, even though Americans can believe in any or no god,

    * Arbitrary – The Wyoming constitution forbids arbitrarily passing laws to take rights away, which means that these pandemic laws pass the test of not being arbitrary because they are based on past experiences with transmitted diseases. Now ole Danny might argue that science is arbitrary since god controls all, but that is not based on science, that is based on an unproven belief and therefore any law passed on beliefs would be arbitrary.

    Wyoming should tax people like Danny because he has more money than sense.

  8. For Pete’s sake. Why can’t people accept a limitation on their “rights” during a pandemic? Otherwise they pander for the right to infect others, the right to die. Some common sense in the application of the constitution would be nice. There is a reason the United States looks foolish to the rest of the world as we exercise our rights and our numbers continue to escalate.