A Wisconsin Supreme Court decision Friday has still not provided a firm conclusion on whether the City of Racine’s closure of school buildings within its borders to combat the COVID-19 pandemic last winter was legal.
The high court’s decision concluded that Racine’s public health official under his/her own authority cannot order schools to be closed even if there is a pandemic, under the Wisconsin statute defining duties of local health officers. That statute states: “Local health officers may do what is reasonable and necessary for the prevention and suppression of disease; may forbid public gatherings when deemed necessary to control outbreaks or epidemics and shall advise the department of measures taken.”
While local rules involving COVID-19 restrictions are practically non-existent now as the pandemic slows, court decisions could have impacts down the road, should other outbreaks of illnesses occur, including resurgences in coronavirus strains.
On Nov. 12, Racine Public Health Administrator Dottie-Kay Bowersox, fearing a spike in COVID-19 cases and deaths, announced an order requiring all schools within the city’s boundaries to be closed to students and teachers from Nov. 27 to Jan. 15.
That order was quickly contested by a coalition of parents and private schools represented by the Wisconsin Institute for Law and Liberty law firm. While that contest was going on, the city’s “Safer Racine” ordinance was amended on Nov. 23 by the City Council to include language reinforcing the school closure order.
In an opinion filed with Friday’s decision, Supreme Court Justice Rebecca Bradley wrote that under Wisconsin law, the authority to close schools resides with state health officials, not local health officers.
“The Court determined, once again, that a local public health officer violated the law when it ordered all schools in her jurisdiction closed. This marks another important case reminding public officials that emergencies do not override the rule of law,” Rick Esenberg, WILL’s president and general counsel, said in a statement Friday.
However, the two cases have a distinct difference that could give the City of Racine’s actions an advantage going forward as legal proceedings continue.
The Dane County Board and Madison City Council did not have an ordinance that afforded extra powers to the local health officer amid the COVID-19 pandemic. The Racine Common Council, however, passed the Safer Racine ordinance that aimed to give the city’s public health officer — Dottie-Kay Bowersox — extra emergency powers.
As Friday’s court decision noted: “A distinguishing feature of this (Racine) case — an ordinance-based school closure — was not present in (the Madison case).”
The legality of the Safer Racine ordinance is still up for debate, too.
Shannon Powell, spokesman for the City of Racine, said in an email following Friday’s Supreme Court decision: “We believe our legislative body followed the law and passed an ordinance to help mitigate the pandemic. Nothing about today’s decisions contradicts our understanding of the law or the council’s action.”
When Racine’s original school closure order was temporarily blocked by the injunction in late November, the city still enforced it because aldermen had codified it in law.
Although no decision has yet been made on the Yandel case, in a partially dissenting opinion Friday, Bradley wrote, “Bowersox circumvented this court’s prior order by proclaiming a new source of authority to enter the exact same order this court declared she had no authority to make or enforce.”
Justices Annette Kingsland Ziegler and Bradley both argued that Bowersox’s actions should have led to her being held in contempt of court, but the majority of the Supreme Court did not voice agreement on that point.
“The people of Wisconsin,” Bradley wrote, “deserve to have these monumental issues of statewide significance heard and decided by the state’s highest court. Instead, the majority’s order denying petitioners’ motion disregards the Constitution altogether.” The petitioners’ motion Bradley is referring to likely would have led to a contempt of court hearing.
Bradley chastised the majority’s decision to not allow contempt hearings to move forward. She called the majority of her fellow justices “feckless” and wrote that “the majority’s apathy caused petitioners to suffer the very irreparable harm the court’s injunction was entered to prevent, and more broadly signals to litigants that they may defy this court’s orders with no reaction whatsoever from the court.”
53 photos showing what life has been like in Racine County throughout this infamous year: 2020
Two families ripped apart
Empty Walmart shelves
Restaurants closing & mask wearing
'YOU ARE INCREDIBLY SAFE TO GO OUT'
Two phones, no answer
Recounting the 12th
Racine Unified recount
Swinging on a closed swingset
ReOPEN WISCONSIN PROTESTS
NEVER-BEFORE-SEEN TESTING EFFORT
Thanking hospital workers: Ascension flyover
BACK IN ACTION, WITH A MASK
Waterford graduation 2020 with face masks for COVID-19
Black Lives Matter on Monument Square
BLACK LIVES MATTER
IN THE STREETS
SAYING HIS NAME
Marching for justice, peace
Kingdom Manna giveaway
Marching for justice, led by Carl Fields
Say their names
Burlington's first Juneteenth rally
Burlington's first Juneteenth rally
Zoom meetings and community discussions
Park High School drive-up graduation
Zoo beach erosion
Racine Art Museum reopens, with masks
St. Catherine's Prom
Fire during Kenosha protests
Unrest after Jacob Blake shooting, preceding Kyle Rittenhouse shootings
CIVIL UNREST AFTER OFFICER SHOOTING
Black Lives Matter debate takes center stage in Burlington
Capping off the globe
Dalquavis Ward convicted
Archbishop Jerome Listecki leads more than 100 faithful past scorched Car Source lot in Kenosha
Adam does a little bit of everything with the JT, from page editing to covering homelessness to localizing state & national politics. He grew up in Racine County, believes in the Oxford comma and loves digital subscribers: journaltimes.com/subscribenow
The Village of Mount Pleasant paid Jack and Colleen Erickson just shy of $1.6 million in March 2018 for a portion of the 12 acres the Ericksons own at 4707 SE Frontage Road. The Ericksons never agreed to the exchange.
In 2018, Republicans ran for Assembly seats in 69 out of 99 Wisconsin districts, allowing Democrats to run unopposed almost one-third of the time. Two years later in 2020, Republicans ran in 92 districts, leaving a mere seven Democrats running unopposed.
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After Gov. Tony Evers announced he would be signing but amending the GOP-authored 2021-23 state budget Thursday morning, Republican leaders spent the day pushing back against the narrative that Evers was providing a tax cut to income earners.
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Masked students exit Racine Lutheran High School in Wisconsin on the afternoon of Nov. 12, 2020. A couple weeks later, Racine Lutheran High School and all other schools in the City of Racine were ordered to close through Jan. 15, fearing spikes in COVID-19 cases.