Updated at 5:11 p.m. CT
Some local health officials in Wisconsin rescinded their stay-at-home orders Friday after attorneys warned they could be vulnerable to legal challenges after the state Supreme Court wiped out Gov. Tony Evers' statewide order.
The Wisconsin Counties Association said after Wednesday's ruling that it was unclear whether local orders mimicking the statewide mandate would stand up in court. By Friday, health officials in Kenosha, Brown, Manitowoc and Outagamie counties had dropped orders, as did the cities of Cudahy and Appleton.
“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.
Wisconsin's largest and most liberal counties, Milwaukee and Dane, home to about 1.5 million of the state's 6 million residents, left their orders in place.
“We think this is good public health,” Milwaukee Mayor Tom Barrett said. "It appears some people are following the political winds. We still have hundreds of people dying and thousands of people sick.”
Barrett has consulted with the city attorney, and they’re confident the city has a legal basis for the actions it’s taking. He says local health departments can take actions pertaining to local health.
He says the Common Council, which is the city’s legislative body, has been involved in the implementation of the order in the city of Milwaukee — an issue the state supreme court had with the state’s order.
“[Milwaukee's safer-at-home] order that we issued on March 25 was ratified by our Common Council,” he says. “So, you have had at the local level, you have had the input from the executive branch through the health department, and you've had, in essence, the ratification of that action by the legislative body. So that argument is out the window.”
Evers in March banned nonessential travel and ordered nonessential businesses to close in an effort to slow the spread of the coronavirus. The order was supposed to expire in late April but 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 conservative-controlled court did so Wednesday in a 4-3 decision that found Palm had acted beyond her authority.
The ruling led bars, restaurants, hair salons and other businesses to open or begin planning to do so. Fearing that infections might spike as people begin moving around again, about a dozen counties 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 how far officers can go under that statute. Even though rule-making doesn't come into play on the county level, he said, the Supreme Court ruling might be cited as precedent in lawsuits over local orders.
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, a liberal 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 it could be argued that if Palm can't issue a stay-at-home order, then neither can locals.
“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.
As of Friday, Wisconsin had seen 11,685 cases of COVID-19 and 445 deaths, according to the DHS.
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