Opponents of Gov. Jay Inslee – several of whom can be found on your primary ballot – like to denounce in the harshest terms his emergency orders.
The orders that close certain businesses and restrict the number of people at a gathering are described as obvious authoritarian infringements on constitutional rights for liberty. They are said to be enforced by jack-booted storm troopers.
But a case involving Slidewaters, a Chelan County water park, demonstrates the opposite.
Slidewaters was among nonessential businesses ordered to close in the original emergency order. Considering that order was issued in February and the water park was closed anyway, that wasn’t such a big deal.
But as May ended and the county was in Phase 1 of economic reopening, the owners got worried. The water park covers most of its nut in the summer and has invested in upgrades that need to be paid off. It sought permission to open with its own “Clean & Safe Plan” at half capacity. While the county health district initially said OK, the state said no way.
With the help of the Freedom Foundation, which likes to champion conservative causes, the park filed a lawsuit arguing the owners were being denied their constitutional rights of due process and Inslee was overstepping his authority.
“It has become obvious to everyone but Jay Inslee that Washingtonians no longer need to live in a protective bubble,” foundation attorney Sydney Phillips said in announcing the lawsuit in early June.
In mid-June, U.S. District Judge Thomas Rice denied the water park’s request for a temporary restraining order.
“Clearly an illegal power grab,” Phillips said of the emergency order. “A defeat for common sense and the rights of entrepreneurs to make a living,” she said of the ruling.
The water park appealed, asked for a preliminary injunction – which is a step up in court orders – and opened while lawyers for the foundation and state jousted with legal briefs and motions.
Last week, Rice denied the request for a preliminary injunction, and essentially said don’t bother coming back for a permanent injunction.
A business’s constitutional rights have limits during a pandemic, he said, and Inslee is within his powers to order businesses to close in an emergency. The ruling is longer than that, of course, but that’s the bottom line.
The foundation, not surprisingly, appealed to the 9th U.S. Circuit Court and, not surprisingly, did not acknowledge that Rice indicated he wasn’t impressed by some of its arguments.
“The court was willing to give dictatorial powers to the governor at the expense of the rights of Washington citizens,” Foundation Vice President Ashley Varner said in an email.
In the month since the water park opened, the Department of Labor and Industries, which fielded complaints and verified it was open, notified operators they were in violation. The department sent a letter on June 29 telling them to cease operations. On July 9 inspectors visited the park and confirmed it was still open, although they weren’t allowed in.
On Thursday, they delivered a “notice of immediate restraint,” which tells the water park to close until the county moves to Phase 3. That notice comes with a fine of slightly more than $9,600.
A notice of restraint is extremely rare, Tim Church, a Labor and Industries spokesman said. This is the first COVID-19-related one.
On Friday co-owners Burke and Robert Bordner said the park will close Monday. With only a 30-day season, opened at half capacity, it may not reopen next year. During those 30 days, no employees got sick and no case of COVID-19 was contact-traced back to the park, they said.
“We pray that our story will be a cautionary tale against Big Government and over-reaching politicians preaching the need for a Utopian society in which respect for others, hard work and caring for your neighbor are no longer the responsibility of the citizens, but taken on as the duty of the controlling government,” they said in an email.
One can argue the owners of Slidewaters may have good cause to think the shutdown order was too harsh when they opened in mid-June. The week ending May 31, the county had only six COVID-19 cases, with 10 the next week and 24 the week after. Many of them were being traced to food processing plants in the area.
But as the summer progressed, Chelan cases rose to 106 the last week of June and 83 the first week of July, according to Department of Health statistics. The county remains in a limited Phase 1.
That’s not to suggest the water park, with its valid concern that staying closed for the pandemic could put it out of business, is responsible for any cases. But it is an indicator that health officials who are advising Inslee have good reason to be cautious about a quick reopening of the economy.
The water park may win on appeal – reporters learn quickly not to predict what judges will do. The Bordners may be entitled to their rhetoric about overreaching government, but Varner’s complaint about “dictatorial powers” suffers from a lack of understanding of what dictators do.
They wouldn’t wait for a judge’s decision, particularly judges they don’t appoint or control. Their agencies wouldn’t allow a business to refuse them entrance, send a letter and later a notice of fines. They’d give one warning – maybe – then arrive with handcuffs for the owners and chains and padlocks for the gates.
That’s not what Slidewaters deserves. A reasonable case could be made for the fine to be reduced or even waived through negotiation.
But heated rhetoric that may allow some folks to blow off steam and others to burnish their conservative cred can be a barrier to cool, reasoned discussions.
Water park lawsuit suffers under Freedom hyperbole
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