Is the city of McKinney’s shelter-in-place order unconstitutional? That’s what a McKinney real estate agent alleges in his lawsuit against the city mayor, meanwhile 7,000 residents and growing have signed a Change.org petition asking for more stringent shelter-in-place.
Derek V. Baker,
an agent with Keller Williams, (update 3/28: Baker is not an agent with KW McKinney. Both Baker and operating partner Dick Licare mutually agreed to part ways a few weeks ago) filed the temporary restraining order against McKinney Mayor George Fuller, a local home builder. Baker says Fuller is overstepping his authority to enact stricter shelter-in-place guidelines within McKinney city limits that would irrevocably harm Baker’s real estate business and the economy at large.
Fuller had issued an executive order on March 26 that was later passed into ordinance by city council asking all citizens to stay home unless they’re out for essentials or are workers in essential businesses.
Baker argues the city order, which specifically defines essential businesses, is unlawful and does not supersede Collin County Judge Chris Hill’s order that all businesses are considered essential and should stay open, provided they follow state-mandates for social distancing and gatherings of 10 people or less.
Baker’s attorney Jim Pikl writes in the original petition, “Plaintiff is suffering actual harm or risk of punishment if he goes to work because his work (real estate sales) is not considered an “essential” business under Exhibit 3 [The city of McKinney’s order]. By being prohibited from going to work, Plaintiff is suffering irreparable harm in the form of lost business, lost professional contacts, loss of prospective business, and damage to his professional reputation and good will, for which the award of money damages will not provide an adequate or sufficient remedy.”
Real estate is not considered an essential business, though Realtors have asked Gov. Abbott to consider it essential. Title companies, meanwhile, are essential.
District Judge Weighs In
Collin County District Judge Jill Willis granted the temporary restraining order Friday evening, saying she’ll rule whether to overturn the city order Monday morning.
Friday the judge agreed with Baker that the city’s order imposes tougher restrictions, forces more people to stay home, fails to define “gatherings,” and uses an arbitrary description for “essential businesses,” NBC5 reported late Friday.
She also agreed that a McKinney restriction forcing all religious and worship services be provided only by video and teleconference conflicted, too.
If Judge Willis overrules the city order, it may have implications for other city municipalities who’ve issued stay home orders for its residents that vary from its respective county’s orders.
For example, Frisco Mayor Jeff Cheney issued a mandatory stay-at-home order for Frisco residents, acknowledging that the city resides in two counties that have defined essential businesses differently.
The City of Frisco on March 25 ruled that it’ll apply Denton County’s specific definition of essential businesses instead of Collin’s.
Texas Governor Leaves Decision to Cities and Counties
Texas Gov. Greg Abbott said March 22 he would not issue a statewide shelter-in-place order and instead would leave the decision up to city and county leaders.
The mayor of Dallas had already enacted an executive order March 16 after President Trump’ address to citizens, closing all restaurants, bars, gyms, and other non-essential businesses, asking Dallas residents to stay home.
The city of Frisco acted similarly, closing restaurants and non-essential businesses on March 20, at which time the city had six confirmed cases.
Collin County Judge Chris Hill on March 24 issued its own “stay at home” order that asked county citizens who are sick or immuno-compromised to stay home, yet urged businesses to stay open because “all businesses, all jobs, and all workers” are essential to the Collin County economy.
“The intent of this Order is to protect the physical health and well-being of Collin County citizens, to protect the financial health and well-being of Collin County citizens, and to slow the spread of COVID-19 to the maximum extent possible while safeguarding the Constitutional liberties of Collin County citizens by utilizing the least restrictive means possible and encouraging the highest level of personal responsibility.”Collin County Executive Order by Judge Chris Hill, March 24
McKinney Mayor Fuller issued a shelter-in-place order the next day, saying he felt further action was needed in McKinney city limits specifically, which had 11 cases at the time.
“All individuals currently living within McKinney are ordered to shelter at their place of residence. All businesses operating within McKinney, except Essential Businesses as defined in below in this Section 7, are required to cease all activities at facilities located within McKinney. For clarity, businesses may continue operations consisting exclusively of employees or contractors performing activities at their own residences (i.e. working from home).”City of McKinney Order, March 26
A Debate Waged on Facebook
Collin County leaders have discussed the issue publicly on Facebook, engaging citizens, who’ve addressed hundreds of comments to County Judge Chris Hill, Mayor Fuller, real estate agent Derek Baker, and the Collin County Government.
Baker first showed his support for Hill’s executive order, posting on Facebook that it is “literally the most prudent, common-sense government directive I have seen thus far, and I am very thankful for the balance and thoughtfulness of this directive.”
The next day, Mayor Fuller told followers on his respective page he agreed with County Judge Hill’s sentiment to preserve physical and resident safety and “to the extent possible, preserve economic health that, at a minimum, provides the opportunity for a family to provide necessary, food, shelter and any medical attention needed.”
“That said, I believe there are further measures that MUST be taken to actually ensure the desired outcomes, specifically as they relate to health, safety and well-being of our residents,” Fuller said.
After Fuller was served with the lawsuit, he wrote on his Facebook page, “I regret that I, as Mayor, and our City staff, will now be diverting energy and resources to defend this lawsuit when there are such greater issues we are dealing with.”
Change.org Petition Growing
The Change.org petition launched by Wade Glover says Collin County’s “guidelines do little to accomplish this goal and increase the confusion for many residents and cities. Judge Hill needs to update his order immediately to align with all of the surrounding counties.” As of 6 p.m. March 29, 7,000 people have signed in support.
The Collin County order differs primarily because it is not a true “Shelter-in-Place” order, as we have seen in Dallas, Tarrant, Denton, and many other neighboring counties.
Judge Hill cited the “financial health and well-being of our local economy” as one of the major reasons for his unique order. No other local county made exceptions for business like Collin County. Instead, most have fines or jail time for violating the Shelter-in-Place measures. They value the physical and mental health of their citizens more than the financial health of the local economy.
While problematic itself, this disparity between Collin County and neighboring counties creates even more problems for cities. For example, Frisco, which is split between Denton and Collin counties, decided Tuesday evening to “use the more detailed definitions as outlined in the Denton County order unless otherwise instructed or ordered by Collin County.”
County officials, specifically Judge Hill and the local Mayors he met with, need to reconvene and update this order immediately to prioritize the health of Collin County residents now and fix the economy later, exactly what other counties in North Texas, states in the US, and countries around the world are doing.”Wade Glover on Change.org
Parties Named in the Lawsuit
The plaintiff, Derek V. Baker had a failed bid for McKinney City Council in 2017 in the same election Fuller was elected mayor. Baker is lead agent Realtor of ConservativeMove.com, which helps sell clients’ homes in blue states and buy homes in red states. He served as senior staff to [former] U.S. Sen. Phil Gramm, [R-Texas] in his Washington, D.C., office for 10 years and went on to serve then-Congressman Mike Pence and [U.S. Rep.] Jeb Hensarling, [R-Dallas].
The defendant Fuller is the managing construction partner for Adriatica, a 46-acre mixed-use development in McKinney and other North Texas developments. Fuller has won several National Home Builder Association Awards, including Best Craftsmanship, Best Overall Home, Best Floor Plan, and multiple People’s Choice awards.
Summary of County Cases
Collin County has 118 confirmed cases of COVID-19 as of 11 a..m. March 28, including 24 in McKinney.
According to Hill, there have been 547 negative COVID-19 tests in Collin County. By that count, Collin County has performed 665 tests as of March 28, up from 125 on March 24. Collin County has an estimated 2018 population of 1 million.
As of March 28, Dallas County has 439 total confirmed cases. Dallas has performed approximately 2,400 tests at two public locations. Dallas has an estimated county population of 2.6 million.
Tarrant County has 128 confirmed cases, among an estimated population of 2 million.
Denton County has 148 confirmed cases and reported its second death today. It has a estimated population of 860,000.
Timeline of COVID-19 Events in North Texas
March 9 The first case of COVID-19 is confirmed in North Texas, a Frisco man in his 30s who traveled to California at the end of February and returned to Collin County at the beginning of March.
March 13: President Donald Trump declares a national emergency to bolster federal funding for fighting the coronavirus pandemic.
March 16 President Trump called on Americans to slow the spread of COVID-19 by avoiding social gatherings of 10 people or more, use drive-through, pickup, or delivery options at restaurants, and avoid visiting nursing homes.
That same day, the City of Dallas orders all bars, lounges, taverns, gyms and theaters to close at midnight.
March 17 On St Patrick’s Day, residents were observed crowding into bars and restaurants outside Dallas that were still open and serving dine-in and bar customers.
March 20 Gov. Greg Abbott mandated the president’s recommendations on social gatherings, bars and restaurants, and nursing homes, and recommended closing schools for a short period of time. (PDF)
The same day, Frisco, located in both Collin County and Denton County, put mandates in place restricting social gatherings, eating/drinking in restaurants and bars, and other recommendations by Gov. Abbott and President Trump.
March 24 Dallas County Judge Clay Jenkins’ “stay home, stay safe” order goes into effect, urging citizens to stay home except for essentials and going to work in a essential business as delineated by the county.
March 25 Collin County Judge Chris Hill enacted a “stay home, work safe” order that asked sick and elderly residents to stay home but named all businesses as essential businesses that should remain open. (see Collin County Executive Order PDF)
March 26 The mayor of McKinney enacted a stricter shelter-in-place order within city limits, saying all residents should stay home unless going out for essentials or work at essential businesses. (see city of McKinney order PDF)
March 27 Derek Baker files suit in Collin County District Court.
Judge grants temporary restraining order that keeps Fuller from enforcing McKinney’s shelter-in-place order until Monday, when she’ll rule.