Six weeks after the Wisconsin Supreme Court threw out the state’s stay-at-home order, city and county officials are learning they may have little ability to control the spread of the coronavirus.
A lawsuit in Racine could determine how much power local officials have to close bars and gyms and take other steps to try to contain the pandemic. The lawsuit — which has gone abysmally for Racine officials in its initial stages — comes as Milwaukee officials consider requiring people to wear masks, and as state health officials raise concerns about an increase in cases.
Wisconsin reported 601 new cases of the coronavirus Tuesday, the second-most since the pandemic began.
Out of nearly 13,000 tests, 4.7% were positive. That's down from 7.1% Sunday, which was the highest one-day rate since May 20.
When the state Supreme Court in May tossed out a statewide stay-at-home order issued by Democratic Gov. Tony Evers, Republican lawmakers said local officials could put their own rules in place to handle the illness.
Several communities quickly imposed their own orders, many of them mirroring the ones written by the Evers administration.
Now, Racine is facing a legal challenge that has led to the suspension of its coronavirus rules, at least for the time being.
Racine County Circuit Judge Jon Fredrickson said during a two-hour hearing Tuesday that he was likely to issue a new decision in the case by Wednesday.
Fredrickson's rulings apply to Racine only. But the case could ultimately reach an appeals court or the Supreme Court, and those courts can issue decisions that are binding on all communities.
Racine’s public health administrator, Dottie-Kay Bowersox, issued a coronavirus order on the day the Supreme Court issued its opinion. Soon afterward, David Yandel, the owner of Harbor Park CrossFit, sued.
Fredrickson in June blocked the city’s order, saying Bowersox was exhibiting “despotic power.”
In response, the city council passed an ordinance codifying the restrictions on how businesses must operate and explicitly giving Bowersox the ability to order businesses to close.
The move did not go over well with the judge. He quickly blocked the revived order, calling it a “direct attack” on his initial ruling.
“Going forward, this court warns (Bowersox and the city of Racine) that it will not hesitate to issue an order to show cause for contempt if any one, or both, of defendants attempt to undermine the orders of this court,” he wrote last week. “There are no strikes two, or three, in this court.”
During Tuesday's hearing, he said he was likely to uphold many of Racine's coronavirus policies because the city “does need to be protected.”
But he said he was likely to toss out the city's rules limiting gatherings, saying they appeared to interfere with the right to peaceably assemble that's guaranteed in the state constitution.
“It’s the only part of our constitution that says ‘shall never be abridged,'” he said of the right to assembly.
Democratic Attorney General Josh Kaul’s office weighed in on the case this week on the side of Racine.
Assistant Attorney General Colin Hector argued in a court filing that the Supreme Court decision had little bearing on what local officials could do because that case was focused on how state rules — not local rules — are written. He noted state law gives local authorities the ability to impose “all measures necessary to prevent, suppress and control communicable diseases.”
The Supreme Court’s decision makes it “all the more important that local authorities be able to respond to the conditions they face in their jurisdictions,” he wrote. “Holding otherwise would be harmful to public health and legally unjustified.”
Hector contended the order's effect on the CrossFit business was limited, writing that the business would be required to have workers wear gloves while cleaning.
The gym's attorney, Anthony Nudo, said his main concern is that the city is trying to give the health administrator carte blanche to put in place any rules she wants. That would mean she could close the business or impose onerous restrictions with no notice, he said.
“It's on its face unconstitutional because it's overtly overbroad,” he said.
However the case goes, an appeal is all but certain, he said.
“These are the types of cases that go to the Supreme Court,” he said. “I believe people are passionate on both sides.”
Racine Mayor Cory Mason is concerned about the possibility the courts could limit the powers of the city's health department, said Mason spokesman Shannon Powell. Cases are trending in the right direction in Racine, but officials are worried about national data showing a surge of cases, he said.
“We trust our public health officials to make the best decision possible, based on science — not politics,” Powell said by email.
Milwaukee alderwoman plans to introduce mask ordinance
As Racine officials weigh in on the power of authorities to set coronavirus rules, one Milwaukee alderwoman said she plans to introduce an order mandating people in the city wear face coverings in public spaces.
Called the MKE Cares ordinance, it would resemble one in place in Los Angeles, Ald. Marina Dimitrijevic announced Tuesday, the same day that the Milwaukee Independent Restaurant Coalition and other businesses called for city leaders to mandate the wearing of masks in businesses.
The CDC recommends wearing cloth face coverings in public, particularly when social distancing isn't possible, to help prevent spreading the virus to others.
“When you wear a face mask during this pandemic, you are demonstrating care for our community,” Dimitrijevic added. “The fastest way to reopen our economy safely and return to a new normal is by covering your mouth and nose in public.”
A communication file about the MKE Cares ordinance, which has yet to be introduced, will go before the Public Safety and Health Committee in a virtual special meeting at 9 a.m. Thursday. The ordinance itself is expected to be introduced at the council's meeting on July 7 and be referred for a full hearing at a special Public Safety and Health Committee meeting July 8.
At this point, the expectation is that the ordinance would last through the end of the year, Dimitrijevic said.
Matt Piper of the USA TODAY NETWORK-Wisconsin contributed to this report.