Kansas County’s Covid Order Unconstitutional, Businesses Say

The public health officials for Linn County, Kansas, implementing an allegedly unconstitutional order to enable contact tracing were accused at oral argument Friday of “rewriting” the order to make it appear more voluntary than it really is.

The owner of Nana Jo’s restaurant is challenging the order’s alleged mandate to collect the names and telephone numbers of in-person shoppers, along with their arrival and departure times. She says it violates her Fourth Amendment right to be free of unreasonable searches and seizures.

The order as worded requires business owners to compile those records for the public health department, counsel for the plaintiffs argued during a telephonic hearing at the U.S. District Court for the District of Kansas.

The court therefore shouldn’t credit Linn County’s argument that the order to turn over records is voluntary, or that it would obtain a warrant if it wants records from a business that declined to turn them over, counsel for the plaintiffs said.

The executive order is intended to help public health officials conduct contact tracing in the event of an outbreak. But as of May 10, there weren’t any Covid-19 cases in Linn County, according to the complaint.

District Judge Holly L. Teeter pressed counsel for Linn County’s health director on whether business owners could be held personally liable for failing to adhere to the provisions of the executive order.

Nana Jo’s could be held liable as a limited liability company registered in the state, but its owner wouldn’t be held personally liable for disobeying the order, attorneys for the county responded.

Teeter sought answers throughout the hearing as to how Linn County intended to deal with businesses that declined to provide that information to the government.

Linn County hasn’t yet sought to enforce the order against the business, its attorneys argued, so Nana Jo’s owner hadn’t alleged an injury in fact that would confer standing to challenge the order.

Teeter concluded the hearing without ruling on the plaintiff’s motion for a temporary restraining order against the enforcement of the county’s order.

Kriegshauser Law LLC and Kansas Justice Institute represents the plaintiffs. Case Linden PC represents Linn County.

The case is Taylor v. Allen, D. Kan., No. 20-cv-02238, motion hearing 5/15/20.