We all remember when the pandemic first struck how municipal public health officials across the country echoed Dr. Anthony Fauci—if we all stay home, wear masks, and social distance for just a few weeks, we can flatten the curve, and get out of this new thing called COVID-19. Many of us no doubt thought at one point, “Surely this is an emergency, and this is what emergency powers are for!” Of course, the pandemic triggered what has become a two-year nightmare of overzealous and outright illegal bureaucracy entrenching itself as far into the daily lives of Americans as possible.
For two parents—Dale Knipp and Noah Seis—they had had enough. Whatever the merits of asking citizens to wear masks around the most vulnerable, it was absurd to require, under threat of criminal penalty, toddlers and children to wear masks at school all day. So, they decided to act.
Case Background
In March of 2020, as the potential dangers of COVID-19 were still uncertain, Colorado Governor Jared Polis declared a disaster emergency, much the same as other governors did to stem the tide of a pandemic. Where other states implemented more or less restrictive protocols—some states ending their emergencies after only a few months while others are to this day under partial lockdowns—Governor Polis declared the emergency officially over in Colorado on August 18, 2021. The state’s Department of Public Health and Environment followed in step and dropped its mask requirements, including orders compelling students and teachers to wear them.
But the pandemic czars at the Tri-County Health Department (TCHD)—a joint agency between Adams, Arapaho, and Douglas Counties—had other plans. Shortly after Governor Polis ended the statewide emergency, TCHD issued a public health order continuing mask requirements for ages two and older in schools and childcare environments, and for teachers and caregivers. Despite a contrary opinion from state health officials, the governor’s position, and the protest of citizens like Dale and Noah, TCHD insisted—and maintains to this day—that the potential risks of COVID-19 grant the agency virtually unlimited power over the residents of some of the most populous counties in Colorado.
Fed up, Dale and Noah sued TCHD in state court, arguing that under the Colorado Constitution, the agency violated the separation of powers, acted in an arbitrary and capricious manner, exceeded statutory authority, and extended the health protocols without substantial evidence to support it.
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What’s at Stake
The terror of unelected health bureaucrats destroying our economy, crippling our schools, and denying our right to free movement must come to an end. Unelected officials have been allowed to issue sweeping mandates under the cover of emergencies for too long. If Coloradans are going to be restricted in their daily lives—or forced to undertake specific health measures like wearing masks—it must be elected officials who weigh the tradeoffs in those decisions, and who are accountable to voters. Not county health bureaucrats.
This is why Mountain States Legal Foundation filed a brief to support Dale and Noah’s efforts to have their case heard by the Colorado Supreme Court as quickly as possible.
Case Timeline
- March 10, 2020: Colorado Governor Jared Polis declared a disaster emergency related to COVID-19.
- July 8, 2021: Governor Polis rescinded his executive order, ending the emergency. The Colorado Department of Public Health did not require masks in Colorado—schools or elsewhere.
- August 18, 2021: TCHD issued the order requiring face coverings for children 2-11 years of age, as well as individuals interacting with children.
- August 31, 2021: TCHD expanded the order for children ages 2 and above.
- September 27, 2021: David and Noah filed their lawsuit against the TCHD in Colorado state court.
- December 27, 2021, and January 28, 2022: TCHD’s order was extended
- January 28, 2022: The court ruled against Dale and Noah.
- They immediately appealed to an intermediate state appellate court, but given the gravity of the issues, have petitioned the Colorado Supreme Court to skip the appellate ruling and decide the case
- September 8, 2022: Mountain States Legal Foundation filed an amicus curiae brief in support of Dale and Noah’s petition to have the Colorado Supreme Court hear the case immediately.