Democratic Attorney General Josh Kaul issued an opinion Friday declaring local stay-at-home orders legal after several communities rescinded their orders fearing challenges in the wake of the Wisconsin Supreme Court striking down a statewide order intended to battle COVID-19.
Kaul cited mounting confusion over the legality of local stay-at-home orders, which were issued within hours of the Supreme Court’s decision in attempts to limit business activities and large gatherings in the absence of a statewide rule, which had been in place since late March to reduce the spread of the novel coronavirus.
Public Health Madison and Dane County communications supervisor Sarah Mattes said Dane County’s order — which essentially mirrors the state’s former “safer at home” order — will stand.
“We believe that our order is perfectly legal and have no plans to rescind it,” Mattes said. “The end of this week looks no different than the beginning of this week in Dane County.”
As of Friday, there were 11,685 confirmed cases of COVID-19 in Wisconsin and 445 deaths, according to the state Department of Health Services. Dane County has reported 517 cases and 25 deaths.
Though mostly Republicans in rural parts of the state where there are fewer cases have been urging an end of the stay-at-home order to help revive businesses, the statewide trend in COVID-19 cases has not subsided. The 410 new cases reported Friday were the second-largest daily increase since the pandemic began.
A shrinking patchwork
More than a dozen counties and several cities enacted their own stay-at-home orders after the Supreme Court’s 4-3 decision to strike down the state’s “safer at home” order.
However, the number of local orders, which ranged from mirroring the state’s former “safer at home” order to rules limiting large gatherings while allowing businesses to remain open, whittled down Friday, with officials expressing doubt in their authority to pass such measures.
Counties that rescinded their local orders include Kenosha, Manitowoc, Outagamie, Winnebago and Brown, which has had the second-most positive cases in the state with more than 2,000 as of Friday.
Kenosha County Health Officer Dr. Jen Freiheit announced the county’s stay-at-home order, which went into effect Wednesday, had been withdrawn the next day due to guidance from the Wisconsin Counties Association’s legal arm suggesting that the Supreme Court ruling also applies to local orders.
“We’ve determined that we will withdraw our order and instead view Safer-at Home as a series of best practices, rather than requirements,” Kenosha County corporation counsel Joseph Cardamone said in a statement.
On Friday, Brown County Public Health Officer Anna Destree said in a statement that the county’s stay-at-home order also had been rescinded.
“Based on research conducted during the last 24 hours, and on consultations with outside legal counsel, Brown County Corporation Counsel is now of the opinion that the legal basis for the Order is likely not strong enough to withstand legal challenge,” Destree said in the statement.
Manitowoc County also withdrew its order to be consistent with neighboring Brown County, and the city of Appleton announced its stay-at-home order had been lifted.
“It is deeply frustrating and disappointing” that Gov. Tony Evers and the Legislature “will not work together, or even attempt to do so, in the interest of statewide health and clarity,” Appleton Mayor Jake Woodford said in a statement.
Appleton, as well as several counties that have lifted their respective orders, have issued public health guidance and best practices for residents to follow.
Also on Friday, plaintiffs in another challenge to the former “safer at home” order argued that Wisconsin Department of Health Services Secretary Andrea Palm attempted to circumvent the Supreme Court’s Wednesday ruling by providing local entities with a template for their own city or county orders.
The lawsuit was filed by two Wisconsin residents who argue the order’s ban on travel and mass gatherings infringes on their rights to practice religion or exercise free speech.
A statement posted Wednesday on the Wisconsin Counties Association website expressed uncertainty over whether the Supreme Court’s ruling also applies to counties.
“As a result, it is unclear whether a local health order would, in the Court’s view, suffer from the same deficiencies that caused the Court to invalidate the Safer at Home Order,” according to the statement.
A statement on the League of Wisconsin Municipalities website also notes a lack of clarity over whether the Supreme Court ruling prohibits a city from enacting its own order to close businesses or limit gatherings due to the pandemic.
“It is possible a municipality could exercise its emergency powers to enact restrictions similar to Safer at Home,” according to the post. “However, it is unclear whether a court would find the scope of authority under (state statute) to extend that far.”
In his opinion, Kaul said the Supreme Court ruling addressed the Department of Health Services’ authority, not a separate statute that allows local authorities powers to “prevent, suppress and control communicable diseases” and “forbid public gatherings when deemed necessary to control outbreaks or epidemics.”
Kaul’s opinion also states that “nothing in the Supreme Court’s decision even arguably limits other measures directed by a local authority under (state statute).”
On Thursday, Democrat Evers and Republican leaders in the Senate and Assembly began conversations regarding potential new COVID-19 rules. However, officials on both sides of the aisle said it’s unlikely a statewide shutdown of businesses will be on the table.
GOP leaders also said they do not anticipate the state attempting to preempt local rules to limit gatherings or business activity. In response to the Supreme Court’s ruling, Evers’ administration took the first step in creating new statewide rules for addressing COVID-19, which would be subject to legislative approval.