Supreme Court ruling leaves complicated patchwork of local stay-at-home orders

A collection of open signs in different languages
Open by Carla Kis-Schuller CC BY-NC-ND 2.0

After a Wisconsin Supreme Court ruling struck down the state’s Safer-at-Home order, county and municipal governments were left to fend for themselves, with some instituting their own orders while others encouraged businesses to open “safely.” 

At a press briefing Thursday afternoon, Gov. Tony Evers expressed frustration over the chaos caused by the court’s ruling, and the piecemeal approach to reopening, now that the statewide order has been thrown out. In some municipalities on county borders — or even split between two counties — neighbors will be under different rules. 

“I can’t imagine another state that is in this predicament, where essentially mile by mile there may be different rules all across the state of Wisconsin,” Evers said.

The ruling, which hinged on a technical reading of the difference between a rule and an order, does not affect local authorities’ emergency powers, so local orders still have force. 

Gov. Evers' chief legal counsel Ryan Nilsestuen
Gov. Evers’ chief legal counsel Ryan Nilsestuen

“Public health officers have very broad authority under state law,” Ryan Nilsestuen, Evers’ chief legal counsel, said at the briefing. “While legislative Republicans and their allies on the Supreme Court overturned the state’s efforts to do so on highly technical rulemaking grounds, those same requirements for rulemaking do not apply to local health officers. 

“So there isn’t a connection between the Supreme Court’s decision yesterday afternoon and what local public health officers are doing,” he added. “As the governor indicated, we’re going to be seeing a patchwork of orders across the state.” 

Nilsestuen called the result a “mess authorized under state law.”

Milwaukee, which still has the state’s largest outbreak of COVID-19, is surrounded by localities operating under a hodgepodge of different orders. 

The City of Milwaukee and the surrounding suburbs remain shut down. But the WOW counties of Waukesha, Ozaukee and Washington have opened. 

“In light of the Wisconsin Supreme Court ruling, many businesses that have been closed will choose to open their doors tomorrow, and many others will choose to expand their operations,” Waukesha County Executive Paul Farrow said in a statement. “We trust our businesses will do so responsibly.”

South of Milwaukee, the City of Racine instituted its own order, continuing most of the provisions of the statewide order that was overturned, as did all of Kenosha County. Racine and Kenosha Counties have two of the highest infection rates in the state. Racine has 833 confirmed cases of the virus and Kenosha has 762, as of Thursday afternoon. 

Assembly Speaker Robin Vos, who represents part of Racine County, said he believes residents can be safe — even with the large outbreak in his home county. 

“Wisconsin now joins multiple states that don’t have extensive ‘stay at home orders’ but can continue to follow good practices of social distancing, hand washing, hand sanitizer usage and telecommuting,” Vos said in a statement. “This order does not promote people to act in a way that they believe endangers their health.”

The state’s other major metropolitan areas have the same problem as Milwaukee. 

Madison and Dane County extended their own stay-at-home orders. So did neighboring Rock and Green Counties. 

“We have seen that Safer at Home is working in Dane County and slowing the spread of COVID-19,” Janel Heinrich, director of Public Health Madison-Dane County, said at a news conference Wednesday evening. “Continuing public health orders at a local level will ensure that we don’t go backward on the progress that we have made. …Please continue to stay home unless absolutely necessary. Do not host groups, gatherings and play dates.” 

But the rest of Dane County’s neighbors, Columbia, Dodge, Iowa, Jefferson and Sauk Counties opened with the court ruling. 

“We have already seen essential businesses take extraordinary steps to continue to provide service while keeping their employees and members of the public safe,” Jefferson County Health Director Gail Scott said in a statement. “This needs to continue. In light of the Wisconsin Supreme Court ruling, many businesses that have been closed will choose to open their doors soon, and many others will choose to expand their operations. Businesses need to do so responsibly.”

Across the state a familiar pattern of patchwork orders was formed. 

La Crosse and Eau Claire counties both opened even as health officers urged caution. 

In a “statement of unity,” La Crosse County Health Director Jen Rombalski said the county wasn’t ready to reopen, but said community members needed to work together and be responsible. 

“Regrettably, the state of Wisconsin and La Crosse County are not ready to go back to ‘business as usual,’” Rombalski said. “A complete return to pre-COVID function will result in a dramatic rise in infections, hospitalizations, and deaths, and could necessitate future prolonged shutdowns. Such events would cause widespread devastation to both our community and our economy. To prevent this, we must work together to respond in a united, informed way that balances livelihood with saving lives.” 

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Brown County, facing the state’s fastest growing outbreak, continued its shutdown, but most of its neighbors did not. 

The City of Appleton, which sits in Outagamie, Calumet and Winnebago Counties, issued its own order. But only two of the three counties — Outagamie and Winnebago — issued orders as well.

Dr. Ryan Westergaard, Chief Medical Officer with the Dept. of Health Services and UW Associate Professor in the Department of Medicine. (Photo: UW-Madison faculty)
Dr. Ryan Westergaard, (Photo: UW-Madison faculty)

With county and municipal lines creating confusing boundaries between areas with open bars, restaurants and hair salons, and nearby localities where those businesses are still shut down,  the state’s ability to control the virus is harmed, according to Dr. Ryan Westergaard, state chief medical officer of the Bureau of Communicable Diseases.

“Having a statewide response, where we’re trying to mitigate the epidemic on a statewide level, was critical, in our opinion, to number one, make sure there’s a uniformity in our response, but number two, give all of us time to build the resources locally that we need to be able to contain local epidemics and prevent them from becoming large, generalized epidemics,” Westergaard said at the Thursday briefing.