Excluding Property Owners: Health "Emergency" Must Balance with Constitution
UPDATE/GUNNISON COUNTY, CO: Gunnison County government, facing intense legal and public pressure by second homeowners forbidden to enter the county during the COVID-19 health scare, today issued an apology to property owners across the nation for delivering the message "in an unmannerly way with a disrespectful tone, and we apologize."
Southeastern Legal Foundation, pointing out constitutional concerns with the County's stated policy of exclusion in its Order - particularly the "until further notice" provision - added to the growing legal outcry by hundreds of property owners and Texas Attorney General Ken Paxton who threatened legal action against the County.
While the County has not yet given a date for relaxing the ban, property owners and taxpayers who do not live full-time in the County are anticipating the County will follow Colorado's guidelines re-opening the state by June.
"We believe the property owners, who pay taxes, support local schools and businesses, and possess the constitutional right to enter their property, support the community in its goal to limit exposure to COVID-19," said SLF General Counsel Kimberly Hermann. "With that said, governments across America bear the burden of limiting their Orders to the constitutionally permissible levels and not take power to which they are not entitled to deprive Americans of their constitutionally protected rights."
SLF will monitor developments closely.
ATLANTA, GA/GUNNISON COUNTY, CO: Southeastern Legal Foundation today called on Gunnison County, Colorado government to amend its blanket order excluding non-resident property owners from the county for an indefinite period of time under the Covid-19 health "emergency" - orders that Southeastern Legal Foundation are unconstitutional. The blanket orders mirror those in several jurisdictions nationwide.
SLF General Counsel Kimberly Hermann lays out several constitutional deficiencies with the Gunnison County orders:
"Indeed, protecting the public health is paramount during these unprecedented times, but such protections must not come at the expense of our Constitution. It is in times of crisis when our constitutional protections are most needed and also most vulnerable, for they are what set us as Americans apart from the rest of the world.
And that is why it is so troubling that without sufficient notice you forbid nonresident property owners from accessing and using their property for an indefinite period of time. In taking away their rights to use their private property, you leave them with nothing but the costs of investing in your county – the purchase price, the taxes, the loan payments, and the possible liability if someone is injured on the property. And you fail to offer the non-resident property owners any timeline on when the prohibition will end or any compensation (let alone just compensation) for their losses. Because of the Order’s indefinite nature, it results in what can only be seen as a total loss of all economic value or at the very least, a significant reduction in the property owner’s investment-backed expectations."
Southeastern Legal Foundation is currently reviewing various jurisdictions' orders across the U.S. for similar constitutional violations.
"There are better ways to protect public health and balance the constitutional rights guaranteed to property owners," said Hermann. "The Bill of Rights does not have an asterisk for open-ended and unconditional suspension of individual liberties."
Click here for SLF letter to Gunnison County, CO