Josh Hurley is a former Idaho State Trooper and resident of Valley County.
Back on February 8th, 2021, Hurley filed a criminal complaint against Valley County Commissioner Elting Hasbrouk. Hasbrouk was one of the CDH board members that voted for the order to be implemented on August 11th, 2020. Hurley alleged 46 criminal violations against Hasbrouk for violating the Central District Health’s (CDH) order requiring a face covering when social distancing is not possible.
Hurley alleged 46 criminal violations against Hasbrouk for violating the Central District Health’s (CDH) order requiring a face covering when social distancing is not possible.
However, Judge Ransom Bailey thew out the criminal complaint saying there was insufficient evidence to move forward.
Idaho Dispatch was sent the original complaint and the judge’s decision, posted on February 17th, for review.
In the criminal complaint, many of the violations listed by Hurley are of Hasbrouk in videos being around other commissioners and county employees.
The videos cited by Hurley show Hasbrouk not wearing a face covering and alleged instances where he is within six feet of another person. Idaho Dispatch has no way to verify the exact distance that Hasbrouk is from the individuals in the videos.
In Bailey’s decision, however, the judge says that “co-workers” are not considered in the health order and therefore Hasbrouk would have an exemption for wearing a face-covering while doing county business if members of the public were not present.
Here is what Bailey said in the footnote on Page 1 of his decision,
“Others are present” must mean other members of the public are present and not household members or co-workers since household members are specifically excluded and since the work setting is not mentioned in the order, except for in the school context. Including co-workers as “others…present” would also make no sense, since here, co-worker exposure would be permitted, before and after public activity ceased.
The judge also said that in the videos provided by Hurley, the video angle does not provide any evidence on whether anyone else from the public was in the room at the time the video was being filmed.
Bailey also indicated in his opinion that it could be interpreted that most businesses, workplaces, and government locations are not “public places” because of the limitation on the capacity that was imposed by the order.
Here is how the CDH order defined “public spaces”:
‘Public place’ shall mean shall mean any place open to all members of the public without specific invitation, including but not necessarily limited to, retail business establishments, government offices, medical, arts, educational and recreational institutions, public transportation, including taxi cabs and ridesharing vehicles, outdoor public areas, including but not limited to public parks, trails, streets, sidewalks, lines for entry, exit, or service, when a distance of at least six feet cannot be maintained from any non-householder member.
Here is what Bailey said in the footnote on Page 7 in part:
The terms of the restriction order’s face mask requirement is ambiguous in terms of its application, in the COVID-19 context, where many stores, offices, and businesses have imposed limitations on the number of members of the public allowed in and the areas they are allowed into. Any such limitations could reasonably be viewed as not allowing “all members of the public without specific invitation.” It is also ambiguous in terms of its application in mixed use facilities, such as a courthouse, where some areas are open to the public and others are not, even in non-COVID times, not to mention the restrictions being imposed on what were formerly public access areas in courthouses and other governmental facilities
Bailey goes on to say that the ambiguity in the health order would favor the defendant if the case had moved forward.
Additionally, Bailey said that the instances observed in the videos of Hasbrouk are not in a location that would be considered open to all of the public for all of the activities that occur there. The judge said that the order was intended only to limit interactions with the general public.
Later in Bailey’s opinion, on Page 14 of the footnotes, he indicates that there was no evidence that Hasbrouk had violated any of the Centers for Disease Control (CDC) guidelines for helping slow the spread of COVID-19 because he did not stay near any of the co-workers for longer than 15 minutes as specified by the CDC.
In October of 2020, the CDC had defined “close contact” as more than 15-minutes (cumulative) in a single 24-hour period.
Here is what Bailey said in his opinion,
Bearing in mind that the intent of the restriction order is to reduce public COVID-19 infections, a review of the videos reveal zero “close contacts,” which the CDC defines as occurring when an infected person (or person suspected of being infected) comes within six feet of another person for at least 15 minutes. Commissioner Hasbrouck is not observed in any of the videos referenced, coming within six feet of another person for at least 15 minutes (whether it be a co-worker or a member of the public).
Bailey also states in the same footnote that the “void for vagueness” doctrine would apply here because no members of the public are present and co-workers or staff are not clearly defined in the video.
Here is how Cornell Law defines criminal “void for vagueness” (definition not used by Bailey but as researched by Idaho Dispatch):
In criminal law, a declaration that a law is invalid because it is not sufficiently clear. Laws are usually found void for vagueness if, after setting some requirement or punishment, the law does not specify what is required or what conduct is punishable.
Bailey ends his 15-page opinion by stating that there is not sufficient evidence against Hasbrouck to move the case forward.
Here is how Bailey closed his opinion,
None of the videos referenced show any encounters between Commissioner Hasbrouck and the other commissioners or staff, in the presence of members of the public. Substantial evidence is lacking concerning any such encounters. Co-worker or staff encounters alone do not clearly violate the order.
Two days after the judge released his decision, the CDH order was voted down. It is unclear what role, if any, the judge’s decision may have had in the order being rescinded.
Hasbrouck, who voted for the original order, also voted to rescind the order.
Idaho Dispatch reached out to Hasbrouck to get his comment on the judge’s decision. Here is what he sent us,
Greg, my opponent in the general election last year filed these complaints against me after watching our commissioner meetings on line. The judge threw them out after doing a great job explaining how I was in an office type setting and wasn’t violating protocol for wearing a mask. Hope this helps.
Hurley did run against Hasbrouck during the general election as a “write-in” candidate.
Idaho Dispatch reached out to Hurley to discuss the case and get his thoughts on the judge’s dismissal.
Hurley told Idaho Dispatch that he was glad the judge did not move the case forward. Here is what Hurley said in a statement after the judge made his decision,
I am happy to see that a judge refused to prosecute Mr. Hasbrouck and to help set a foundation for equal enforcement of the law. I hope it had something to do with the Health Board realizing the legal error in this order and withdrawing it. I’m thankful to each leader who serves on the board as they labor through trying to figure out a way to help promote the general welfare of all Idahoans through equally enforceable laws.
What do you think of the judge’s opinion on CDH’s health order?
Do you think Hasbrouck should have been prosecuted or did the judge do the right thing in throwing the case out?
Let us know your thoughts in the comments below.
Tags: Centers for Disease Control, Central District Health, Covid-19, Elting Hasbrouck, Face Covering, Josh Hurley, Ransom Bailey