Two Linn County businesses have filed a federal lawsuit challenging an order by Linn County Health Director Dr. Jay Allen and the Linn County Commission as unconstitutional.

The order requires, in part, certain types of businesses to “encourage curbside pick-up,” but in-store customers are allowed only on an appointment basis and businesses are required to, “maintain the following information on each in-store customer which includes Customer Name, Phone Number, Date of Visit, Arrival Time and Departure Time. This information must be kept and made available to the Linn County Public Health Department upon request for the purposes of Contact Tracing for a minimum of 30 days from time of visit.”

This includes everything from medical services, government services, banks, agricultural businesses, lumber yards, restaurants, and “other retail sales.”  The order, in effect, requires nearly every business in Linn County to keep such a list and mandates a $500 fine for each violation.

Jackie Taylor, owner and publisher of the Linn County News, and Linda Jo Hisel, owner of Nana Jo’s restaurant in LaCygne, found this intolerable.

“We have a great deal of trust in our county officials, but this just goes too far,” Taylor said in a release from the Kansas Justice Institute. “COVID is serious, but we can’t let our most-basic rights be eroded.”

Hisel agreed.

“The people coming to my restaurant are practically family, and I shouldn’t be expected to keep tabs on them for the government,” she said.

Kansas Justice Institute, which like the Sentinel is owned by the Kansas Policy Institute, filed the federal suit on May 10, alleging violations of the Fourth and Fourteenth Amendments.

The KJI release noted that the order requires such records to be turned over on demand — ostensibly for contact tracing in the event of a further outbreak — but does not specify that be the only reason the records are turned over, nor does it require a warrant to do so.

Samuel G. MacRoberts, litigation director for KJI, who filed the case on behalf of Taylor and Hisel, in his complaint wrote that the order “authorizes warrantless searches and seizures for any purpose without any pre-compliance review.”

“Constitutional rights do not get suspended during a pandemic,” MacRoberts said in the release. “There is a clear process by which governments can obtain business and personal records. Unfortunately, Linn County has ignored that process and put the basic rights of its citizens in serious jeopardy.”

Olathe attorney Ryan Kriegshauser joined KJI in the suit and echoed MacRoberts.

“In time of crisis we must adhere even closer to our constitutional principles, not abandon them,” he said in the release. “The order requiring businesses, particularly law firms and medical facilities, to track customers and report them to the government on demand must be challenged.”

Both law firms and medical practices, in particular, have broad protections under state and federal law for client and patient confidentiality — and news organizations such as the Linn County News also enjoy legal protections designed to shield confidential sources.

The two business owners are not seeking financial penalties against the county, but only a judgment of constitutional violations and a restraining order against enforcement.

MacRoberts said this is about the rights of all Kansans.

“Government officials cannot be permitted to conduct warrantless searches,” he said. “If we don’t stand up for our rights, we’ll lose them.

“We filed this lawsuit on behalf of Jackie and Linda Jo to hold the government accountable. It’s just as important now, perhaps more so, to follow the rule of law and respect our constitutional rights. The government does not get a free pass, even during a pandemic.”

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