Several Wisconsin counties and municipalities have rescinded local “Safer at Home” orders, citing legal advice against implementing them in the aftermath of Wednesday evening’s Wisconsin Supreme Court ruling throwing out the statewide order.
After the court’s 4-3 ruling against Gov. Tony Evers and Andrea Palm, secretary-designee for the Wisconsin Department of Health Services (DHS), Kenosha County announced a countywide version of the state order, limiting travel and gatherings and restricting certain businesses from opening to the public.
Late Thursday, Kenosha County Health Officer Dr. Jen Freiheit announced she was withdrawing the order and instead stated that public health officials “strongly urge people to continue observing the public health guidelines outlined in Safer-at-Home.”
In a statement the county health division said it acted on advice of the county’s corporation counsel, Joseph Cardamone III, who “said guidance received from the Wisconsin Counties Association’s legal arm late today suggested that the provision struck down by the State Supreme Court also applied to local health officers.”
Brown County, the location of Wisconsin’s worst COVID-19 outbreak, rescinded its countywide order Friday afternoon. Anna Destree, the county’s public health officer, said in a statement “the order is likely not strong enough to withstand legal challenge.”
Like Kenosha County, Destree cited advice from Brown County Corporation Counsel David Hemery, as well as outside legal counsel.
Throughout the day Friday, other counties and municipalities that had instituted local orders made similar decisions. The Cities of Appleton and Cudahy withdrew their orders this afternoon, both pointing to updated legal guidance.
“It is deeply frustrating and disappointing that the Legislature and Governor will not work together, or even attempt to do so, in the interest of statewide health and clarity,” Appleton Mayor Jake Woodford said in a statement. “The people of Appleton are frustrated and confused as a result of this inaction, and we are not going to wait for the state to act if they aren’t going to anyway.”
The Wisconsin Counties Association, however, issued a statement Friday that it had not given any legal advice for or against the local county orders.
“Wisconsin Counties Association has made no statement on the legality of local public health orders and has issued no formal guidance on such,” the association stated. “The Association held a webinar call with membership on May 14, 2020, discussing uncertainty regarding the Supreme Court ruling and its impact on state and local authority.”
The association said that its speakers on the call told participants that “counties should act in the best interest of their citizens.” The association said it was recommending that “counties consider WEDC guidelines on business reopening, WHA health and hospital data, and communication with neighboring counties to facilitate a regional approach if possible.”
At a DHS media briefing on Thursday, Ryan Nilsestuen, the chief legal counsel for the governor’s office, said that statutory language conferring authority on county health officers was not affected by the state Supreme Court ruling, which treated the statewide order as an administrative rule requiring it to go through the Legislature for approval. Local orders would not be part of that process, Nilsestuen said.
The Brown County Public Health Division, Corporation Counsel and County Executive did not respond to requests for comment.
The Kenosha County Division of Health Services, county executive’s office and the corporation counsel’s office also did not respond to requests for comment.