Empower Wisconsin | May 18, 2020
MADISON — Gov. Tony Evers’ health chief was prepared to take her power play local after the Wisconsin Supreme Court struck down the state lockdown.
In her “Safer at Home and Badger Bounce Back Template for Local Health Officials,” Department of Health Services Secretary-designee Andrea Palm laments that the court “diminished the Department’s ability to respond to the unprecedented COVID-19 pandemic.”
Not exactly. What the 4-3 ruling declared is Palm grabbed up power that was not unilaterally hers in defiance of state law. That law calls for legislative oversight. More so, her extended order locking down the state failed to follow the constitution.
But no worries, Palm says in her guidance. “Local health officials may still issue local orders to protect their communities from communicable diseases like COVID-19.” In short, If the Republican-led Legislature and the conservative-controlled Supreme Court won’t allow me to take away your civil liberties in the name of public health, maybe local government can do it.
Palm points to state statute which says local health officers “shall promptly take all measures necessary to prevent, suppress and control communicable diseases” within their county. Another statute, the DHS director said, allows local health officials to “do whatever is reasonable and necessary for the prevention and suppression of disease,” including forbidding public gatherings.
“The Wisconsin Supreme Court’s decision does not affect this authority,” the DHS document asserts.
Liberal Attorney General Josh Kaul argued the same points in an opinion insisting the local orders are legal. His opinion was not shared by other prosecutors.
Green County District Attorney Craig Nolen on Monday wrote to local Health Officer RoAnn Warden and county officials that regardless of the attorney general’s opinion, he highly recommends rescinding Green County’s extended stay-at-home order. Green County, as of Monday morning, was one of about 20 counties and cities statewide that had continued some form of lockdown.
“The enforcement of the order is frankly impossible, as Section 4-4-4 applies to places only under County Zoning Restrictions, and likely to be struck down if challenged,” Nolen wrote in an email obtained by Empower Wisconsin. “My office will not be enforcing it in any criminal action, after further review and analysis of the issues presented. I foresee significant liability to the County at this point with no real ability to enforce the order.”
Warden finally heeded the DA’s advice and the order was rescinded Monday afternoon.
Green County’s neighbor to the north stayed the course on its lockdown while playing lip service to reopening. Public Health Madison and Dane County on Monday released its Forward Dane plan. It “allows” businesses to begin Tuesday to prepare to reopen, according to the Wisconsin State Journal.
“If key metrics are in a favorable position for at least one week, the county will step into the first of three reopening phases. Each phase will last for at least 14 days — the incubation time of the coronavirus — before Public Health assesses whether to move to the next phase,” the newspaper reported.
In other words, it may take more litigation for Dane County businesses and citizens to get their rights back.