MADISON — Local health officials across Wisconsin began rescinding their stay-at-home orders Friday after attorneys warned the mandates could be vulnerable to legal challenges after the state Supreme Court wiped out Gov. Tony Evers’ statewide order.
Eau Claire County health officials said Friday that language in the county’s order is legal and enforceable, though they noted that education, not enforcement, is the order’s purpose.
The Wisconsin Counties Association posted a message on its website after the court ruled Wednesday saying it’s unclear whether local orders mimicking the statewide mandate would stand up in court. Health officials in Kenosha County withdrew their stay-at-home order Thursday night in light of the WCA warning. Brown and Manitowoc counties as well as the cities of Cudahy and Appleton dropped their orders Friday afternoon.
“While the WCA and outside legal counsel did not opine that counties were outright prohibited from taking such actions, they did indicate that overall, the legal basis to do so is likely weak,” Brown County’s attorney, David Hemery, said in a letter Friday to the county’s health officer, Anna Destree.
Evers issued a statewide order in March banning nonessential travel and ordering nonessential businesses to close in an effort to slow the spread of the coronavirus. The order was supposed to expire in late April but state Department of Health Services Secretary Andrea Palm extended it to May 26 at Evers’ direction.
Republican legislators frustrated with the order’s economic fallout asked the state Supreme Court to strike the order down. The court ruled 4-3 on Wednesday to erase the order. Chief Justice Patience Roggensack said the order amounted to an administrative rule that was subject to legislative approval and that Palm lacked the authority to issue it unilaterally.
The ruling led bars, restaurants, hair salons and other businesses to open immediately or begin making plans to re-open. Fearing that infections might spike as people begin moving around again, about a dozen counties have issued their own stay-at-home orders.
State law allows local health officers to “do what is reasonable and necessary for the prevention and suppression of disease.” They can issue edicts without going through the rule-making process that the high court said state officials must use.
But the WCA’s attorney, Andrew Phillips, said it’s unclear just how far officers can go under that statute. Even though rule-making doesn’t come into play on the county level, he added, Roggensack wrote that Palm’s order confining everyone to their homes exceeded her authority as state health secretary on its face. That could become precedent that could decide local stay-at-home lawsuits, he said.
Attorneys for the state Department of Justice, which is run by Democratic Attorney General Josh Kaul, believe the court’s opinion doesn’t extend to local authority. Health officials in Dane County, a liberal stronghold, said they believe their stay-at-home order is legal because state law allows local officials to issue any order to suppress a communicable disease.
“(The Supreme Court ruling) has nothing to do with local health authorities,” said Lester Pines, an attorney who has represented Evers in the past. “If someone wants to litigate that in the context of this pandemic, they are free to do so. But that is not what the Supreme Court said.”
Rick Esenberg, president of the Wisconsin Institute for Law and Liberty, a conservative law firm, said someone could argue that if Palm can’t issue a stay-at-home order, then locals lack the power as well.
“Simply cutting and pasting a statewide order is going to be looked at with a great deal of suspicion,” Esenberg said. “You have to do something that is more directly targeted and narrowly tailored. (But) you won’t know for sure until you’ve got a court decision.”
Evers’ spokeswoman, Melissa Baladauff, blamed the Supreme Court for creating confusion.
“We said all along there would be chaos if the Supreme Court tossed the governor’s plan and didn’t provide any clear direction and that’s exactly what we have,” she said.
Adding to the uncertainty Friday was Republican state Sen. Steve Nass, who demanded Evers withdraw his outline for a new emergency rule to manage the coronavirus pandemic in Wisconsin.
Nass serves as co-chairman of the Legislature’s joint rules committee, which has to approve any rule before it can take effect. He said Evers’ scope statement indicates he wants to restore elements of the statewide stay-at-home order. Nass’ stance underscores how difficult it will be for Evers, a Democrat, to get any coronavirus rules through GOP lawmakers.
Baldauff didn’t immediately respond to a follow-up email seeking comment on Nass’ position.
As of Friday, Wisconsin had seen 11,685 cases of COVID-19 and 445 deaths, according to the DHS.