/ Articles / Pandemic thrusts freedom to travel into the spotlight

Pandemic thrusts freedom to travel into the spotlight

Federal lawsuit asserts a constitutional right to travel

April 28, 2020 by Richard Moore

In sunny times, resort areas welcome seasonal homeowners — and their money — with open arms, as property taxes from second homes fill government coffers and revenue from their spending in grocery stores and restaurants and other retail businesses boosts local commerce and sales tax collections.

But times are sunny no more. As COVID-19 has settled in with its own seasonal residence, more and more U.S. counties and municipalities have withdrawn their open arms and increasingly replaced them with blunt admonitions for seasonal homeowners to stay away, and in some places those admonitions are actually legal prohibitions.

That has sparked growing tensions between state and local officials seeking to protect public health and seasonal and second-home property owners who claim government has no right to deny them access to property for which they pay taxes. In one case, in North Carolina, a group of homeowners has filed suit in federal court to assert those rights.

Wisconsin is no exception to the intensifying tug-of-war between public health and the right to travel. While there is no legal ban on traveling to seasonal or second homes in the state, Oneida and Vilas counties have strongly urged those taxpayers not to come north, as have other Wisconsin tourism counties such as Door County.

On March 20, Oneida County advised seasonal and second homeowners to stay away due to the county’s limited health care infrastructure, and ordered those who do travel north to self-isolate for 14 days.

“People who have seasonal homes in Oneida County, please stay at your winter homes at this time,” the notice stated. “If you are already back in Oneida County, you must immediately self-isolate for 14-days.”

Vilas County issued a similar order the same day.

Those orders mimicked state guidance. Gov. Tony Evers’ Safer at Home orders have banned all forms of nonessential travel. Traveling to a residence from outside the jurisdiction, however, was deemed essential travel, though the state Department of Health Services strongly discourages traveling to seasonal homes.

As for the directive to self-isolate, state law gives local public health officials broad authority to order any individual to self-isolate or quarantine. Other counties, though, such as Price County, have been less demanding in their advisories. 

In a statement, Price County administrator Nick Trimner said he both understood that seasonal non-residents might decide to come to their cabins or second homes to distance themselves from more populated areas and that local year-round residents might be concerned those individuals could be carriers.

Rather than directly asking seasonal visitors not to come to Price County, Trimner instead implored they be careful and consider all the risks before doing so, and he asked for rather than ordered self-isolation when they arrived.

“With that being said, we respectfully request that individuals considering travel to their seasonal residence in Price County proceed with caution and consider the repercussions of your actions,” Trimner wrote on March 26, six days after the Oneida and Vilas directives. “If you decide to deny the governor’s emergency order and come to Price County, please self-quarantine and monitor yourself for virus symptoms for 14 days after your arrival before interacting with the public. The precautions you take, could be lifesaving.”

In the end the forceful language used by some counties with large numbers of seasonal and second homeowners forced the state Department of Transportation (DOT), along with the Wisconsin Counties Association (WCA), to clarify that the states did not — and counties could not — actually ban such travel.

On April 14, saying they wanted to dispel rumors, the WCA and DOT stressed that state roadways and borders remained open to in-state and out-of-state travelers.

“State patrol and county sheriff’s departments continue to enforce traffic laws as usual, but are not pulling over vehicles with out-of-state plates or other motorists just to ask about the purpose of their trip,” the release stated. 

In an April 7, 2020, memo to sheriff’s departments and other county government officials, the WCA notified officials that counties did not have the legal authority to ban out-of-state travelers or second home/seasonal homeowners from visiting a county during the pandemic, and also could not ban out-of-state or second/seasonal homeowners from patronizing stores that were permitted to be open.

The DOT and WCA both stressed that interpretation did not violate the governor’s prohibition on nonessential travel, because the order allows travel to residences from outside that jurisdiction and also includes exemptions for “essential travel” such as travel for business, to care for family members, and other activities.

Even more restrictive states

In other states, governors and local officials have abandoned strong words for legal edicts. Michigan is the most restrictive.

Some parts of Michigan Gov. Gretchen Whitmer’s executive order are identical to those issued in Wisconsin by Evers, such as a ban on all public and private gatherings of any number of people. 

But Whitmer’s orders go much further, prohibiting motorboats but permitting the use of canoes, sailboats, and kayaks. And, unlike in Wisconsin, Whitmer has closed gun and ammunition stores.

Also unlike in Wisconsin, the Michigan governor actually prohibited travel between two residences within the state. Whitmer is facing at least two federal lawsuits over various aspects of the restrictions.

Travel to seasonal homes or to other states has been where the rubber has met the road in a lot of the constitutional clashes triggered by the lockdowns. Some jurisdictions have gone so far as to set up checkpoints that, in some instances, turn nonresidents away or require contact information so authorities can make sure they self-quarantine for 14 days. In Rhode Island, police went driveway to driveway, looking for New York license plates and knocking on the doors of those they found to collect information and inquire about self-isolation.

NC lawsuit over second home access

Perhaps the most intriguing lawsuit — and the one with the most relevance to counties with large numbers of seasonal and second homeowners, such as in Oneida and Vilas counties — has been filed in North Carolina, where six out-of-state property owners have sued Dare County in federal court after the county set up checkpoints and refused to allow most nonresident owners to their second or seasonal homes.

As other counties nationwide have done, Dare County passed a COVID-19 state-of-emergency declaration, and then, in a second declaration, prohibited the entry of non-resident visitors and non-resident property owners, according to the lawsuit, though it did allow residents living in the county, as well as those in the nearby counties of Currituck, Hyde, and Tyrrell to enter Dare County.

After the second declaration, the lawsuit continues, law enforcement check points were established to prevent the entry of non-residents, while residents of the permitted counties could enter for business, work, or to attend medical appointments.

According to the complaint, the plaintiffs, who are owners of rental properties in the county, would be unable to prepare the properties for the spring and summer rental season if they were unable to enter. That precludes their pursuit of a common calling, the lawsuit states.

The property owners say Dare County, by enacting and enforcing its state of emergency declaration, acted unconstitutionally and without lawful authority.

Specifically, the lawsuit states, Dare County’s actions violate the plaintiffs’ rights under the U.S. Constitution’s Privileges and Immunities Clause by prohibiting their right to travel in the state of North Carolina, to engage in a common calling, and to obtain medical treatment in Dare County. 

“Each of these rights are specifically given to the residents of Dare, Currituck, Hyde, and Tyrrell counties but are denied the plaintiffs as they are out-of-state residents,” the lawsuit states.

Put simply, they are being unconstitutionally discriminated against, the complaint alleges.

“If not enjoined by this court, Dare County will continue to discriminate against the plaintiffs, and deprive them of their constitutional rights,” the complaint states. “The plaintiffs will suffer irreparable injury due to this deprivation of constitutional rights.”

The privileges and immunities clause of the United States constitution provides that “the citizens of each state shall be entitled to all the privileges and immunities of citizens in the several states,” meaning states can’t discriminate against people simply because they live in another state.

The lawsuit also contends that the emergency declarations could not withstand a strict scrutiny test under the law. Under strict scrutiny, a government must show that a law or regulation is necessary to a “compelling state interest,” that it is narrowly tailored to achieving that purpose, and it uses the least restrictive means to achieve the purpose.

The Dare County declarations are not narrowly tailored to serve the government’s interest in public safety but excessively intrude upon plaintiffs’ rights under the privileges and immunities clause by effectively banning them from engaging in conduct that is constitutionally protected, the lawsuit states.

The lawsuit also alleges that, in adopting the travel restrictions, Dare County did not follow proper procedures under North Carolina statutes.

Claim: Constitutional violation

The first question the lawsuit poses is whether Americans even have the right to travel. 

That’s the easy part. Though the federal constitution never mentions it — a right to travel was in the Articles of Confederation but excised as presumptive — case law has firmly established such a right.

In United States v. Guest, the court stated it this way: “In any event, freedom to travel throughout the United States has long been recognized as a basic right under the Constitution .... Although there have been recurring differences in emphasis within the court as to the source of the constitutional right of interstate travel, there is no need here to canvass those differences further. All have agreed that the right exists.”

The courts have also firmly established the right to enter and leave another state under the constitution’s privileges and immunities clause, which is a fundamental contention of the North Carolina lawsuit.

A stickier point for the plaintiffs in the case is the prohibition of nonresidents does not just apply to out-of-state residents but to all North Carolina counties except those explicitly named that surround Dare County. 

That could nullify the privileges and immunities clause that prohibits a state from discriminating against citizens of other states because the same restrictions are placed on most of the residents of North Carolina. On the other hand, a federal constitutional right to travel would likely prevent Dare County from denying entry to most North Carolina residents while permitting entry to those who live in surrounding counties.

Prohibiting property owners from accessing the property for which they pay taxes could raise property rights and takings issues as well, but those were not raised in the complaint.

Finally, there is the question of whether advisories that do not impose legal bans on travel but assert that nonresidents or second home/seasonal residents aren’t welcome — like the advisories in Oneida and Vilas counties did — can implicate constitutional rights if a person can claim injury because of such an advisory.

For example, if a person arrived at a second home that was then vandalized because the property owner traveled there against the explicit desires of government, could that property owner claim a constitutional injury if the owner could prove the vandalism was incited by the government’s admonition to stay away?

As one Supreme Court decision put it, the right to travel embraces three different components, and one of those is “the right to be treated as a welcome visitor while temporarily present …”

Some or all of those questions could be answered in the federal lawsuit filed in North Carolina, and all are relevant to present and potential future actions by Wisconsin state and local officials.

Richard Moore is the author of the forthcoming “Storyfinding: From the Journey to the Story” and can be reached at richardmoorebooks.com.

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