Judge: Racine must halt COVID restrictions | Local News – Journal Times

19June 2020

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RACINE — A Racine County Circuit Court judge on Friday afternoon issued a temporary halt to the City of Racine’s COVID-19 restrictions.

That means the city can no longer enforce its restrictions at this time, per the court order.

Judge Jon Fredrickson issued the temporary injunction order while a civil suit against the city and its Public Health Administrator Dottie-Kay Bowersox by David Yandel, the owner of Harbor Park CrossFit, 3801 Blue River Ave., works its way through the court system.

“The defendants are temporarily enjoined from enforcing the Forward Racine order, and enacting any other orders pursuant to administrator Bowersox’s exercise of general powers to issue general orders of general application under Wisconsin statute 252.03,” Fredrickson said.

Fredrickson denied City Attorney Scott Letteney’s request to stay the order until the city could appeal.

Gym owner sues City of Racine and health official over local Safer at Home extension

Yandel filed the suit against the city and Bowersox on May 21, alleging that business has dropped by more than 25% since the local Safer at Home Order went into effect on May 13.

Bowersox issued that order after the state’s Safer at Home Order was nixed by the Wisconsin Supreme Court.

Capacity limits

On May 26, Racine’s new coronavirus restrictions called “Forward Racine” went into effect, allowing gyms in Racine to reopen but restricting them to only 10 customers inside at any time, or 25% capacity, whichever is larger.

It also placed restrictions on other businesses as well, such as restaurants, bowling alleys, wedding venues and many more sectors.

Yandel’s lawsuit said that the City’s Safer at Home order will “lead to the likely closure of the business” due to “significant loss of revenue and loss of customers due to the Racine order.”

The suit asks the court to find the Racine Safer at Home order “unlawful, invalid and unenforceable.”

Fredrickson said the state Supreme Court’s decision on May 13 to strike down the state level Safer at Home order factored into his decision on Friday.

The Supreme Court decision said that Wisconsin Department of Health Services Secretary Andrea Palm could not issue general health orders of general applications under the same statutes that the city used to justify its own Safer at Home and Forward Racine orders.

Racine's local COVID restrictions go to court Friday

Fredrickson said that under the city’s interpretation, this is giving Bowersox, who is not an elected official, unlimited power at the local level.

City response

In response to the judge’s decision, Mason said in a statement, “Racine still has the highest per-capita number of coronavirus cases in the state. Safer at Home and Forward Racine were working. While our infection rate is still four times the state average, we have seen a 33% reduction in infection rates. The judge’s recklessness jeopardizes the public health gains we have made and will endanger the health of our residents.”

His concern was echoed by Bowersox, who said, “My responsibility to the residents of the City of Racine is to serve in a professional capacity that will allow and advocate the best health outcomes for the community. If the orders I issued, kept one family safe or saved one life, it was the right thing.”

She added, “While there may not be an official order in place, I hope residents will use good judgement and still follow the recommendations of the CDC by washing your hands, wearing a mask, physical distancing, and staying home as much as possible.”

Letteney’s argument

Letteney argued that Bowersox’s power, per the law, is limited by “what is reasonable and necessary to prevent disease.” But Letteney admitted that it would be Bowersox’s own opinion that determined what was reasonable and necessary.

“Isn’t that a despot?” Fredrickson asked, of that seeming limitlessness of Bowersox’s power, under his view of the city’s interpretation of the law.

If Bowersox has the power to do whatever she deems “reasonable and necessary” to halt disease in Racine, Fredrickson said, that could mean banning salt, sugary drinks and deep fried foods from restaurants to prevent heart disease, high blood pressure and diabetes.

He added that he did not believe Bowersox had the intention to do so.

The judge also said that Bowersox’s order saying that violators would be subject to forfeiture was not clear enough to inform citizens of what they would be forfeiting.

“I can’t imagine anyone in the City of Racine has any idea what this forfeiture is,” Fredrickson said.

He also questioned her authority to enforce this penalty under local and state law.

Letteney argued that the gym could not prove that the city’s orders are what specifically caused its drop in business, which began with the state’s Safer at Home order in mid-March. The gym cannot prove, Letteney said, that the gym is losing customers due to the city order. Instead, he said, they might be fearful of catching COVID-19, which is spread through respiratory droplets, in an environment where people will be exercising and breathing heavily.

Fredrickson said his order in this case was not about whether the Forward Racine order is, “good or bad or necessary.” Instead it is about whether or not Bowersox has the legal power to issue such an order.

State Attorney General Josh Kaul was served in the case but Assembly Speaker Robin Vos, R-Rochester, state Senate President Roger Roth, R-Appleton, and Senate Majority Leader Scott Fitzgerald, R-Juneau, have not been served with a copy of the proceeding. They have a right to be heard before the court rules, Fredrickson said.

Kaul did not ask to be heard on Friday.

Another hearing on this case is set for 1:30 p.m. next Friday, June 26.

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