Reply to Erin Weisman, County Attorney, 27 April 2020 Cc: to County Commissioners

Thank you, Ms. Weisman, for your response.

I can certainly understand how you and Dr. Riddell are justifying your quarantine actions by relying on Wyoming Statutes which seem to give you the authority to shut down the County. I believe you misinterpret the scope of your authority in that regard. That is why we were so disappointed when you cancelled our online meeting. We wanted a frank and open discussion on the matter. That is called “…the right of the people … to petition the Government for a redress of grievances.” You denied us that right. Had we had our online meeting with you, we might have resolved this matter. Wyoming statutes which your ORDER quoted will be dealt with herein.

We’ve made our points very plainly for two weeks now, in three formal communications with you and with other City/County officials. On April 20 we presented an official Notice, signed by a dozen or more citizens.

The TETON DISTRICT HEALTH OFFICER PUBLIC HEALTH ORDER NUMBER 20 – 4, says “ORDER REQUIRING ALL PEOPLE WITHIN TETON COUNTY, WYOMING, INCLUDING THE CITY OF JACKSON, WYOMING, TO LIMIT GATHERINGS TO ONLY INDIVIDUALS WITHIN THE SAME HOUSEHOLD, WITH EXCEPTIONS”.

The ORDER does not say it applies only to “those who test positive for Covid19 virus” nor does it say it applies to “those who, because of health issues, may be at high risk for Covid 19 virus”. The ORDER specifically says “ALL PEOPLE” are prohibited from associating with any individuals, other than those in our immediate households. The ORDER also says we cannot associate without the permission of the District Health Officer as delineated in “EXCEPTIONS” or by request to the District Health Officer for his permission, as stated in the following paragraph of the Order;

IT IS FURTHER ORDERED, that the District Health Officer may grant exceptions to this order on a case-by-case basis after evaluating the request;”

This ORDER is overly broad and is therefore not “narrowly tailored” as the constitution requires (as referenced in your email/letter). We do not argue with the state or county or city’s desire to meet the compelling government interest of trying to keep COVID-19 from spreading. Our issue is that the order is not narrowly tailored at all. It is sweepingly broad and affects every aspect of the lives of all people. An order that required an ill person to wear a mask when going into public or to their doctor’s office is more narrowly tailored to achieve the compelling government interest. An order requiring all people to simply stay at home is overly broad and doesn’t meet the constitutional standard. An order requiring Plexiglas in front of a cash register is narrowly tailored. The order to close the entire store to all people is not narrowly tailored. Constitutional law cases are clearly being violated by the county’s broad implementation of the state’s overly broad order. The state and county officials need to revise their order to only address narrowly tailored measures and then only implement those narrowly tailored measures.

This County ORDER appears to violate our Constitutional First Amendment Right “peaceably to assemble”, and appears to violate the Fourteen Amendment which says, “…nor shall any state deprive any person of life, liberty, or property, without due process of law…” This ORDER deprives us of the liberty of going where we wish, associating with whomsoever we wish, and it deprives us of the ability to earn a living. That is a taking of liberty and property “without due process of law”. The First and Fourteenth Amendments do not say, “The District Health Officer may deny you permission to exercise those rights.” The First and Fourteenth Amendments do not say, “There are exceptions to these Rights”.

The Wyoming Constitution, Declaration of Rights, says, Sec. 7. …Absolute, arbitrary power over the lives, liberty and property of freemen exists nowhere in the republic, not even in the largest majority.”

No public official, neither City of Jackson, nor County of Jackson, nor State of Wyoming, nor Congress of the United States, nor President of the United States, has the “arbitrary power” to deprive us of any Right which is guaranteed by the United States and Wyoming Constitutions. These rights to “peaceably assemble”, to travel freely “liberty”, and to earn our living “property”, cannot be rescinded by edict of any public official no matter what the statute says. The Constitutions trump the statutes. We do not have to “request” permission.

The County “ORDER” is the very definition of “Deprivation of Rights” under Title 18 Section 242 and is punishable by fine and/or imprisonment of the offender. The Department of Justice website for Title 18 Section 243 specifically says, in part,

Deprivation of Rights by a public official: For the purpose of Section 242, acts under “color of law” include acts not only done by federal, state, or local officials within the their lawful authority, but also acts done beyond the bounds of that official’s lawful authority, if the acts are done while the official is purporting to or pretending to act in the performance of his/her official duties.” https://www.justice.gov/crt/deprivation-rights-under-color-law  Please read the whole thing.

The Miranda Decision of the U.S. Supreme Court, Miranda v. Arizona, 384 U.S. 436 (1966), page 491, specifically states;

“Where Rights secured by the Constitution are involved, there can be no rulemaking or legislation which would abrogate them.”

Teton County Wyoming has made a “rule”, actually an “ORDER” which abrogates our First Amendment right “peaceably to assemble”, and our Fourteenth Amendment rights of “…liberty, or property, without due process of law.”

You Teton County Officials, including County Attorney Erin Weisman and Teton District Health Officer Dr. Travis Riddell, MD., are taking these actions by relying on Wyoming Statutes, as follows;

35-1-240. “Powers and duties.(a)The department of health, through the state health officer, or under his direction and supervision, through the other employees of the department, shall have and exercise the following powers and duties:(i)To exercise in Wyoming, all the rights and powers and perform all duties hereunder;(ii)To investigate and control the causes of epidemic, endemic, communicable, occupational and other diseases and afflictions, and physical disabilities resulting therefrom, affecting the public health;(iii)To establish, maintain and enforce isolation and quarantine, and in pursuance thereof, and for such purpose only, to exercise such physical control over property and over the persons of the people within this state as the state health officer may find necessary for the protection of the public health; (iv)To close theaters, schools and other public places, and to forbid gatherings of people when necessary to protect the public health;”

How do we reconcile that statute with the US and Wyoming Constitutions? Perhaps the Wyoming Statutes are in error and need to be challenged by our County Attorney under the grounds of being unconstitutional or “void for vagueness”. Does Wyoming Statute 35-1-240 violate the Constitutional Rights, especially the First and Fourteenth Amendments, of the people of Wyoming?

In Volume 16, American Jurisprudence, 177, we find the following:

“The general rule is that an unconstitutional statute, though having the form and name of law, is in reality no law, but is wholly void, and ineffective for any purpose; since unconstitutionality dates from the time of its enactment, and not merely from the date of the decision so branding it. An unconstitutional law, in legal contemplation, is as inoperative as if it had never been passed. Such a statute leaves the question that it purports to settle just as it would be had the statute not been enacted.
“Since an unconstitutional law is void, the general principles follow that it imposes no duties, confers no rights, creates no office, bestows no power or authority on anyone, affords no protection, and justifies no acts performed under it. . . .
A void act cannot be legally consistent with a valid one. An unconstitutional law cannot operate to supersede any existing valid law. Indeed, insofar as a statute runs counter to the fundamental law of the land, it is superseded thereby.
No one is bound to obey an unconstitutional law and no courts are bound to enforce it.” [bold emphasis added]

Ms. Weisman, wouldn’t it be part of the duty of the County Attorney to see the discrepancy between this Wyoming statute and the Constitution? Please take this issue up the chain of the courts, even to the US Supreme Court if necessary, in order to revise an unconstitutional statute. That is what should happen.

I don’t believe you County officials are deliberately violating the Constitution. But I do believe the County Officials and the County District Health Officer have misinterpreted the statute as written. I believe the statute is not written to apply to all of the people, only to those who have tested positive for the virus. I base my belief on this portion of the statute:

“…for such purpose only, to exercise such physical control over property and over the persons of the people within this state as the state health officer may find necessary for the protection of the public health;”

A person, such as myself, who is healthy and showing no signs of infection of Covid19, should not fall under this description in the statutes. It is inconceivable that the State would knowingly enact a statute which enables an appointed or elected official to violate the inherent Rights of the people, namely the right to earn a living, the Right to associate with others not of their household, and the Right of liberty—to travel without restriction. For the same reasons, I believe paragraph (iv) of the statute to be unconstitutional.

In conclusion, our rights are not dependent on a public official’s reaction to a real or perceived emergency. Our rights are inherent and are completely protected by the Constitution for the United States of America. No “PUBLIC HEALTH ORDER” or decree can negate those rights.

I ask County Officials to explain how their actions comply with the Constitution of Wyoming and of the United States. I am awaiting your reply.

Maury Jones, “Jonesy”
505 E. Zenith Dr.
Jackson, WY 83001
307-887-3356
JonesyJacksonHole@gmail.com