RACINE — While Kenosha County and other counties have withdrawn their local Safer at Home orders with officials saying they cannot legally enforce it, the City of Racine’s order was still in effect as of Friday afternoon.
The city’s order is set to continue until 8 a.m. Tuesday, May 26, the day after Memorial Day. But it was unclear Friday whether it could be extended beyond that date, or if the city has the legal authority to keep its order in effect.
Is the order legal?
In response to differing and updated legal guidance, Kenosha County withdrew its local action that continued the provisions of the state’s Safer at Home order, county Health Officer Jen Freiheit announced Thursday night.
The move allowed businesses in Kenosha County to reopen without risk of penalty or prosecution, although Freiheit and other local officials strongly urged people to continue observing the public health guidelines outlined in the Safer at Home order.
Kenosha County Corporation Counsel Joseph Cardamone said guidance received from the Wisconsin Counties Association’s legal arm suggested that the provision struck down Wednesday by the state Supreme Court also applied to local health officers.
“The Supreme Court’s order caused a great deal of confusion and uncertainty … 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. “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.”
Racine’s legal opinion
Racine City Attorney Scott Letteney maintained Friday that the city has the legal authority to adopt its own emergency order and enforce it.
“I’m drawing a fine legal distinction here,” Letteney said in an email to The Journal Times on Friday. “In the recent decision, the Supreme Court did not say that the particular provisions contained in Emergency Order 28 could not be imposed under any circumstances. The court said that Secretary-designee Adrea Palm did not follow the statutory rule-making procedures, under Wisconsin Statute section 227.24, to impose her order and that the order exceeded the authority of the Wisconsin Department of Health Services, as defined by Wisconsin Statute section 252.02. It did not say anything about what a local health officer may do under Wisconsin Statute section 252.03 or under any other law.”
He went on to explain that the city public health administrator did not continue the state order, it adopted the provisions spelled out by the state, with a slight amendment pertaining to religious establishments.
City different than county
Letteney also stated in an email to The Journal Times that county and municipal governments are different.
“County governments are more an arm of state government; municipal governments, especially cities and villages, are more independent,” Letteney said. “The City of Racine is quite unique in Wisconsin in that Racine has its own public Health Department dedicated to this municipality. There are very few other similar examples in Wisconsin.”
He also went on to say that Racine Public Health Administrator Dottie-Kay Bowersox is a “local health officer” under Wisconsin law. Pursuant to Wisconsin Statute section 252.03, a “local health officer shall promptly take all measures necessary to prevent, suppress and control communicable diseases ... may do what is reasonable and necessary for the prevention and suppression of disease (and) … may forbid public gatherings when deemed necessary to control outbreaks or epidemics....”
He went on to say: “I note the phrases ‘all measures necessary,’ ‘what is reasonable and necessary,’ and ‘when deemed necessary,’ are important standards guiding the local health officer’s discretion, decision making, and order making.”
Following Wednesday’s Supreme Court decision, the Wisconsin Counties Association issued guidance to counties that stated, “While Wis. Stat. 252.03 provides a local health officer with broad regulatory authority, enforcement of local health orders proceeds under the same statute relating to enforcement of statewide orders like Safer at Home – Wis. Stat. 252.25. This is the same statute that the Court cited in its decision as problematic in terms of enforcement of the Safer at Home Order. 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.”
In contrast, Jerry Deschane, executive director of the Wisconsin League of Municipalities, told The Journal Times that the Supreme Court struck down the order as it stood statewide, not for local municipalities. He also noted that some cities, like Racine and Madison, may be able to enforce things due to having their own departments of health, which have the authority to prevent and control illness. Deschane said things really depend on location, but many things remain unclear. Deschane said they have been sharing what they know for sure, but essentially said specifics are up to local governments and depend on how they are set up.
Racine Mayor Cory Mason has also implied on Thursday that Racine’s Safer at Home order could be extended.
“There is nothing magical about any one date,” Mason said at a news conference on Thursday. “It’s not on a specific date. It is with data and benchmarks that we will move forward.”
Mason outlined four measures that need to happen locally:
- “We need community-wide testing and I’m thrilled we’ll start that on Monday.”
- “We need community tracing so we can get a hold of this so we get a hold of this and figure out how it’s spreading.”
- “We need to see our cases going down and the curve flatten, which we are not seeing. We are still seeing an increase.”
- “We need people to be practicing good social distancing ubiquitously and repeatedly.”
Statewide, of 140,342 COVID-19 tests conducted to date across the state, 11,685 came back positive, a rate of 8.3%.
However, at the county level, the 14-day average for receiving positive tests is at 19%, the county reported on Friday.When asked about hospital capacity concerns, Mason said he didn’t want to speak for the Ascension hospital system. But he said he does talk to Ascension officials regularly and “I would say they have it under control, but I would also say they have seen a number of cases. And those are reflected in the increased positive cases we are seeing.”
Mason added: “I don’t think the system is overwhelmed at this point and that is a factor we could and should look at because we don’t want to overwhelm the health care system. But it’s not the only factor.”
“County governments are more an arm of state government; municipal governments, especially cities and villages, are more independent. The City of Racine is quite unique in Wisconsin in that Racine has its own public Health Department dedicated to this municipality. There are very few other similar examples in Wisconsin.” Scott Letteney, Racine city attorney
Journal Times reporter Lauren Henning contributed to this report.
“County governments are more an arm of state government; municipal governments, especially cities and villages, are more independent. The City of Racine is quite unique in Wisconsin in that Racine has its own public Health Department dedicated to this municipality. There are very few other similar examples in Wisconsin.”
Scott Letteney, Racine city attorney
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