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Attorneys: Local stay-at-home orders on shaky legal ground

By TODD RICHMOND
Associated Press

MADISON, Wis. (AP) — Local stay-at-home orders could be vulnerable to legal challenges after the state Supreme Court ruled that Gov. Tony Evers’ statewide order went too far, attorneys warned Friday.

The Wisconsin Counties Association posted a message on its website after the court ruled Wednesday in which it said 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.

“With varying guidance from the Wisconsin Counties Association and more time to review best practices moving forward, together we’ve determined that we will withdraw our order and instead view Safer-at-Home as a series of best practices, rather than requirements,” said the county’s attorney, Joseph Cardamone.

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 bewilderment.

“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. He accused Evers and state Department of Health Services Secretary Andrea Palm of trying to circumvent the ruling and seize control of people’s daily lives again.

Evers began writing an emergency rule on Thursday. The first step was crafting a scope statement, which is a summary of what the rule would do. The statement said the rule could “re-articulate” parts of Evers’ business re-opening criteria and “balance them against the goals in the Safer-at-Home Extension.”

Nass’ stance underscores how difficult it will be for Evers, a Democrat, to get any coronavirus rules through GOP lawmakers, who are still complaining that the stay-at-home went too far.

Baldauff didn’t immediately respond to a follow-up email seeking comment on Nass’ position. By Friday, Wisconsin had seen 11,685 cases of COVID-19 and 445 deaths, according to the DHS.

Copyright 2020 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.

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