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After the Wisconsin Supreme Court struck down Gov. Tony Evers’ Safer at Home plan to tackle COVID-19, some local governments instantly adopted similar restrictions to keep communities shuttered, creating a patchwork of policies across the state.
But the list of closed communities grew shorter on Thursday and Friday, as several local governments — including COVID-19 hotspots Brown County and Kenosha County — rescinded their Safer at Home orders. Citing legal guidance, local officials said the shutdowns stood on shaky legal ground. But Wisconsin Attorney General Josh Kaul later issued a legal opinion saying local health officers retained plenty of legal room to maneuver against the virus.
Brown County (2,034 confirmed COVID-19 cases and 21 deaths), is home to meat packing plants that have seen outbreaks of the virus, and it leads in COVID-19 cases per capita among Wisconsin counties, according to Department of Health Services data.
“Brown County Corporation Counsel is now of the opinion that the legal basis for the Order is likely not strong enough to withstand a legal challenge,” Brown County Health Officer Anna Destree said in a statement Friday that offered recommendations for continuing to control the virus.
Kenosha County (780 confirmed COVID-19 cases and 17 deaths), ranks fourth in cases per capita in Wisconsin. An unnamed county supervisor recently tested positive for COVID-19, the Kenosha News reported Friday.
Kenosha County Corporation Counsel Joseph Cardamone cited guidance from the Wisconsin Counties Association in rescinding his county’s order Thursday night.
“The Supreme Court’s order caused a great deal of confusion and uncertainty last night that left us and others across the state struggling to determine how to abide by the ruling while continuing to protect the public’s safety amid the COVID-19 pandemic,” Cardamone said in a statement.
Wisconsin law gives local health officers broad authority, but enforcement of local health orders falls under the same statute the Wisconsin Supreme Court scrutinized in its ruling on Wednesday, the Wisconsin Counties Association wrote in a memo.
“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,” the memo said.
But in an opinion issued late Friday, Kaul argued that Wednesday’s ruling only dealt with state authority, and it did not interfere with local health officers’ powers to “prevent, suppress and control communicable diseases” or “forbid public gatherings when deemed necessary to control outbreaks or epidemics.”
“Because the court decision addressed a different statute applicable to a state agency, and not the statute applicable to local authorities, the (Supreme Court) decision is not directly controlling on powers under the latter statute,” Kaul wrote to Outagamie County Executive Thomas Nelson, who requested an opinion but still rescinded his county’s Safer at Home order Thursday.
Kaul advised local governments to limit enforcement to “ordinances or administrative enforcement,” rather than a criminal mechanism.
Wisconsin courts are not obligated to follow an attorney general’s opinion, but they often do.
The Milwaukee Journal Sentinel is tracking the fast-changing list of local COVID-19 policies. Manitowoc County also rescinded its order, the newspaper reports, as have the cities of Appleton and Cudahy.
In a city of Appleton news release Friday, Mayor Jake Woodford’s office said the city issued its Safer at Home order to buy time for Evers and the Legislature to craft new statewide rules to slow the virus. But swift action appeared unlikely.
“It is deeply frustrating and disappointing that the legislature and Governor will not work together, or even attempt to do so, in interest of statewide health and clarity,” Woodford said in a statement.
Brown County rescinds safer-at-home order because of legal issues — Green Bay Press Gazette
Kenosha County withdraws local order on Safer-at-Home — Kenosha News
Kenosha County Board supervisor tests positive for COVID-19 — Kenosha News
Top GOP lawmakers now want to leave virus plan in the hands of local officials — Milwaukee Journal Sentinel
Could a business be sued if a customer gets COVID? Maybe. It’s complicated. — Wausau Daily Herald
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