Coronavirus, Gold Dome, Governor Polis, Original Report, Sherrie Peif, Weld County

Weld County Attorney says state health orders unenforceable; advises against playing waiver ‘game’

GREELEY — Weld County is unlikely to ask for a waiver from the Colorado Department of Public Health and Environment (CDPHE) to reopen businesses faster, or with less regulation, because its county attorney says it doesn’t have to.

Weld County Attorney Bruce Barker recently sent a memo to commissioners answering several questions posed by them over the past few weeks from constituents who had reached out to them, confused by Weld County’s stance on Gov. Jared Polis’ Safer-at-Home executive orders.

Barker said the public health orders do not outline how to isolate or quarantine sick people, which the CDPHE actually has the authority to do. Instead they are a series of rules that are not only unenforceable, but also created inappropriately outside of protocol.

In the memo, which Complete Colorado received earlier this month, Barker says that state public health orders 20-28 are a series of rules couched as orders that he said are without legal effect.

“Rather general rules on how you go about living your lives or running your businesses,” Barker said in a recent podcast interview with Karen Kataline. “An order to quarantine or isolate, they have the authority to do that, but doing general rules, there is no authority for the state health director to do that except for by rule making.”

The rule making process is long and cumbersome and requires the legislature to authorize the new rules in statute. None of that has occurred in this case. According to Barker that was the first red flag for him, supported by a Wisconsin Supreme Court ruling that dismissed orders by that state’s governor after the state legislature sued for overstepping his authority. Barker said the ruling given by the state Supreme Court in that case echoed everything he says in his opinion.

Bruce Barker

“If you go along with the premise that the state health director can issue orders that are rules that then tell you how to live your life and run your business, then that person has the ability to change her mind at any time,” Barker said. “You have an unelected official who is creating a crime.”

Barker, who has worked as the county attorney in Weld for 37 years, said he addressed the subject with commissioners after the state requested Weld County apply for a waiver to allow businesses to reopen ahead of schedule. Weld County got caught in the crosshairs with Polis and the CDPHE when it announced its “Safer-At-Work” plan without their blessing.

Polis had threatened to withhold federal emergency COVID-19 funding, but Weld commissioners ignored the threat. They continue to tell business owners in Weld County that they did not close them down, and they will not tell them when they can and cannot reopen or at what capacity.

Barker said the second red flag was the fact the state Attorney General Phil Weiser’s office has not prosecuted one single case under the orders. Additionally, the governor said himself in a press conference that the orders were not enforceable.

Bottom line, Barker said, a variance is not needed because none of the rules were legally created anyway.  He told Complete Colorado that businesses could challenge the validity of the orders if they need to defend citations received by police departments that enforce the state public health orders despite the county repeatedly calling them nonexistent.

“The argument would be there was no legal authority for the CDPHE director to issue the rules through a health order,” Barker said. “They needed to be by emergency rulemaking.”

Barker said the biggest problem is people continue to abide by the order.

“The state health director can’t create the rule,” Barker said. “I’m surprised that there has been very little push back. When I talk with county attorneys across the state, they are more than happy to go along with it and ask for variances, and very proud they got them. The variances issued include at the end of every one of them a short statement that says the state health director has the ability to rescind that variance at any time or for any reason. The question comes down to do you want to submit to that sort of discretionary authority when from my review they don’t have that authority to begin with.”

Barker said he believes other counties are asking for them because it’s the easier path, but he has told commissioners he does not recommend they ask for the variance.

“It’s not (wise to ask for a variance) because then you are playing into the game, and I don’t think you should play into the game,” Barker said. “The harder path is to say, ‘no it’s not something we’re going to go along with’ and stand up to it. These orders have a tendency to say were not going to allow you to have individual responsibility. Instead, were going to order you to do what we think you ought to do and how to live your life. I don’t think that sits well up here in Weld County.”

Memorandum Legal Effect of … by Sherrie A Peif on Scribd

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