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A federal lawsuit was filed May 20 against City of Racine Public Health Administrator Dottie-Kay Bowersox and 20 other Wisconsin officials alleging that locally mandated Safer at Home orders are unconstitutional.

The lawsuit, which lists a Racine resident as one of its 17 plaintiffs, asks the Eastern District of Wisconsin of the U.S. District Court to end all of Wisconsin’s local Safer at Home orders.

“The local orders unlawfully interfere with plaintiffs’ rights to work and to worship, to gather and assemble, in violation of their Federal Constitutional Rights,” the complaint alleges.

City of Racine Public Health Administrator Dottie-Kay Bowersox

City of Racine Public Health Administrator Dottie-Kay Bowersox.

Other defendants in the case represent Dane, Outagamie, Winnebago, Green and Rock counties, the City of Appleton, the Grand Chute Police Department, the Wisconsin State Capitol Police and the City of Milwaukee, as well Department of Health Services Secretary-designee Andrea Palm and Gov. Tony Evers.

The plaintiffs are represented by Joseph W. Voiland of Veterans Liberty Law, which is based in Cedarburg. Voiland served as an Ozaukee County Circuit Court judge from 2013-2019.

Racine City Attorney Scott Letteney said May 20 that the city still has not been served with the lawsuit yet. As such, “It would be premature to provide any comment,” he said in an email.

Racine woman’s allegations

Among the plaintiffs is Sandra K. Morris of Racine. In the lawsuit, she claimed that two of her rights specifically have been unlawfully stripped.

The first was her ability to worship. Places of worship in Racine are now allowed to legally hold services, albeit with limited numbers of attendees.

Racine City Attorney Scott Letteney

Racine City Attorney Scott Letteney.

Morris’ second claim, along with five of her co-plaintiffs, is that the Safer at Home order prevented her from circulating recall petitions “for either state or local office holders.”

Amid the coronavirus pandemic, many of those who are running for public office have held outdoor events or gathered signatures by mail, rather than collecting signatures by going door-to-door as is normally done, to ensure their nomination petitions are filled out with enough voters’ signatures.

Statewide order overturned

The statewide Safer at Home order was overturned on May 13 by a 4-3 vote by the Wisconsin Supreme Court. Republican-appointed justices were responsible for the decision.

State Attorney General Josh Kaul and Letteney said afterwards that local orders were still legal if there was an ongoing public health emergency in a specific locality.

Last week, Letteney argued that the Supreme Court’s ruling on the statewide order did not declare that the order itself was unconstitutional, just the way it was implemented by the Department of Health Services.

The court’s decision “did not say anything about what a local health officer may do under Wisconsin Statute section 252.03 or under any other law,” Letteney said.

Ryan Nilsestuen, the governor’s legal counsel, said that he is “optimistic that this lawsuit will go nowhere.” Heading into the Supreme Court hearing earlier this month, Nilsestuen had expressed confidence that DHS would win the case; he was later proven wrong when four justices sided with the Republican-led Legislature.

Local situation

Only a handful of local Safer at Home orders remain in place statewide, including in the cities of Racine and Milwaukee, and in Dane County. On May 18, Dane County announced its plans to roll back its order.

Ryan Nilsestuen, Gov. Tony Evers' legal counsel

The City of Racine plans to release an outline before the end of the week o how it will begin allowing businesses to reopen.

Kenosha County, as well as several other municipalities, repealed its order after consulting with an attorney soon after the Wisconsin Supreme Court decision.

Confirmed cases of COVID-19 are rising in the City of Racine faster than the rest of the state, with more than 550 cases and five deaths in the city alone. The rate of increase in the greater Racine area ranks among the top 25 in the nation, according to data compiled by The Upshot and The New York Times.

On Tuesday, the City of Racine’s emergency health declaration was extended until July 31 by the City Council per request of Mayor Cory Mason, as was a restriction on mass gatherings that need to be approved by the city per order of Bowersox.

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