State lawmaker Patrick Neville, commentator Michelle Malkin sue Gov. Polis over executive orders

Supreme Court petition calls COVID-19 orders unconstitutional

By: - August 28, 2020 12:06 pm

Colorado House Minority Leader Patrick Neville speaks on the floor of the state House of Representatives on June 11, 2020. (Andy Bosselman for Colorado Newsline)

Two high-profile conservative figures this week announced a lawsuit against Democratic Gov. Jared Polis and the state’s top health officials over executive orders issued during the COVID-19 pandemic, including the requirement for Coloradans to wear masks to reduce virus transmission.

Colorado House Minority Leader Patrick Neville, a Republican from Castle Rock, and conservative commentator Michelle Malkin filed a lawsuit in the Colorado Supreme Court against Polis and several other defendants, including: the Colorado Department of Public Health and Environment, CDPHE Executive Director Jill Hunsaker Ryan, El Paso County Public Health, EPC Public Health Executive Director Susan Wheelan, and Robert McDonald, the executive director of the Denver Department of Public Health and Environment.

“The governor has gone well beyond the power that’s been given to him,” Neville said in a video posted on his campaign Facebook on Aug. 27. “He’s actually legislating and writing laws. That is our job as a Legislature.”

GET THE MORNING HEADLINES DELIVERED TO YOUR INBOX

Neville said Polis, along with state and local health officials, was issuing orders without the constitutionally necessary public feedback. Polis should seek input from the Colorado Legislature and allow for committee hearings and public testimony before telling people what to do, he said.

“Yes, I’m SUING radical control freak Colorado Gov. Jared Polis over his unconstitutional, junk science-basked mask mandate. Joining GOP House Rep. Patrick Neville in lawsuit filed by legal eagle Randy Corporon!” Malkin said in an Aug. 26 post on her Facebook.

https://www.facebook.com/therightmichellemalkin/posts/10163986238010084?__tn__=-R

Through Aug. 26, there had been a total of 56,343 cases of COVID-19 in Colorado, according to data from CDPHE. The disease has caused 1,835 deaths in the state.

“We are free to be on the side of a deadly virus that has taken the lives of too many friends, parents, and loved ones, or on the side of Coloradans,” Polis said in an emailed statement provided by a spokesperson, when asked for comment on the lawsuit. “I’m on the side of Coloradans.”

At least 173 executive orders

Neville and Malkin are represented by Denver attorney Randy Corporon. Attorney Stanley Thorne, who spoke in the Facebook video, is also part of the legal team.

Thorne said the lawsuit targets four executive orders to make the scope more manageable, since dozens of executive and public health orders have been issued since the start of the pandemic. They’ve covered everything from business closures to suspension of elective surgeries to last call for alcohol.

“It’s a very complex array of orders to deal with, and that’s how we’re going to try to streamline that,” Thorne said.

Neville called the orders issued by local public health agencies “probably even more egregious” than those issued by the governor.

“These local health departments actually have unelected bureaucrats writing these laws and rules and putting them in place, and hurting good, good solid people and businesses,” Neville said.

Polis and the state’s top health officials have maintained that all orders are based on available data and are aimed at balancing Coloradans’ safety during a public health emergency with the economic needs of the state.

How does the number of executive orders issued in Colorado compare with other states of similar populations?

The Democratic governor of Wisconsin, Tony Evers, has issued nearly 50 executive and emergency orders since the beginning of March. Minnesota Gov. Tim Walz, also a Democrat, has issued close to 90. Republican Maryland Gov. Larry Hogan has issued around 80.

Gov. Jared Polis gives an update on the extent of the coronavirus pandemic and the Colorado wildfires on Aug. 18, 2020. (Moe Clark/Colorado Newsline)

Polis has issued at least 173 executive orders since March 11.

On top of those, CDPHE has issued 34 public health orders throughout the pandemic.

As of June 29, Colorado was second only to Michigan in the number of executive orders issued by the governor and state agencies in response to the coronavirus outbreak, according to Ballotpedia, using data from The Council of State Governments.

“The people of Colorado have prospered and had an opportunity to exercise liberty, individual freedom and personal responsibility and personal accountability under a government of divided powers,” Thorne said. “We don’t have that anymore. We haven’t had it for five months. It’s time that that be restored, and hopefully the Colorado Supreme Court, in due course, will address these issues and we’ll get the result that we expect.”

A second lawsuit

Separate from the Neville-Malkin lawsuit, two Republican candidates for the Colorado Legislature filed a lawsuit in federal district court in Colorado against state and local mask mandates.

In their complaint filed July 25, Donna Walter of Fort Collins and Mark Milliman of Boulder County allege that “requiring healthy individuals to wear symbolic face coverings is compelled speech in violation of the First and Fourteenth Amendments and impermissibly violates plaintiffs’ federal constitutional and statutory rights.”

Jeff Zayach, the executive director of Boulder County Public Health, Tom Gonzalez, the director of Larimer County Department of Health and Environment, and Fort Collins City Manager Darin Atteberry are named in that lawsuit. As of Aug. 27, none of the defendants had filed a response.

As of Aug. 27, a GoFundMe created by Walter and Milliman and called “Breathe Free Colorado” had raised more than $6,100 to “oppose the never-ending rule of Colorado by Governor Jared Polis,” including more than $500 in the past week.

Theirs is not the only campaign seeking to raise money from Coloradans angered by the governor’s mask mandate.

Take Back Colorado is an election committee registered with the Colorado secretary of state’s office that has urged Coloradans to donate to help pay for legal expenses in a potential lawsuit, which Neville had declared he would file directly following Polis’ original mask order.

Between June 25 and July 27, Take Back Colorado — created in September of 2019 — raised more than $27,700 in monetary donations. Its purpose, according to filings with the secretary of state, is to “educate and inform Colorado voters regarding candidates running for office, primarily supporting Republicans and opposing Democrats.”

That’s a far cry from the previous month, when between May 28 and June 24, the committee raised less than $5,000. While it’s possible Polis’ July 16 mask order spurred people to donate, it’s unclear how much of the $27,700 actually went to the lawsuit.

Take Back Colorado
A screenshot from Take Back Colorado’s website taken July 30. (takebackco.org)

As recently as July 30, Take Back Colorado’s website had displayed a photo of Polis with the words: “HELP US STOP JARED POLIS’ UNLAWFUL MASK MANDATE / Representative Patrick Neville is challenging Polis’ UNLAWFUL executive order in court. / It can cost up to $20,000 for the legal counsel needed to STOP POLIS from violating our civil liberties. / You can help STOP POLIS’ UNLAWFUL MANDATE by chipping in $50, $25, $10, or anything you can afford!”

As of Aug. 27, the landing page simply read: “If you’re ready to take back control of Colorado from the Democrats in 2020, sign up to join us today!”

Take Back Colorado Facebook
A screenshot of Take Back Colorado’s Facebook page on Aug. 27. (facebook.com/takebackcolorado)

A Facebook page for Take Back Colorado, however, still had as of Aug. 27 a July post urging Colorado voters to fund an anti-mask lawsuit pinned to the top.

The page was created in March 2019 with the original name of “Recall Colorado.” Its name was changed to “Take Back Colorado” in August 2019, according to Facebook’s Page Transparency information.

As of this publication, Neville had not returned multiple emailed requests for comment. The registered agent for Take Back Colorado, listed as Joe Neville, told a reporter in July that he would have someone else involved with the fundraising campaign contact Newsline. Newsline had not been contacted by anyone from the committee as of this publication.

Our stories may be republished online or in print under Creative Commons license CC BY-NC-ND 4.0. We ask that you edit only for style or to shorten, provide proper attribution and link to our web site. Please see our republishing guidelines for use of photos and graphics.

Faith Miller
Faith Miller

Reporter Faith Miller covers the Colorado Legislature, immigration and other stories for Colorado Newsline.

MORE FROM AUTHOR