by CHRIS ROGERS
“We’re in the Wild West,” Wisconsin Governor Tony Evers said after the state’s Supreme Court struck down his administration’s safer-at-home order on May 13 and left nothing in its place to slow the spread of COVID-19. Across the state, counties and cities scrambled to put their own restrictions on gatherings in place, while revenue-starved local businesses opened their doors. When the virus’ spread in Trempealeau County accelerated to an average of nearly five new infections every day in mid-June, Trempealeau County health officials asked citizens to voluntarily return to lockdown — no non-essential errands, no indoor gatherings, and no indoor dining — but their plea didn’t carry the power of law. If COVID-19 gets bad enough in the months ahead, will anyone in Wisconsin mandate shut downs?
State action possible, but appears unlikely
Wisconsin’s safer-at-home order did not come from the Democratic governor himself, but from Andrea Palm, the head of the Wisconsin Department of Health Services (DHS). The Supreme Court ruled that a state agency did not have the authority to issue such an order without getting approval from the Legislature’s rule-making committee. Days later, Palm proposed a new safer-at-home order to the committee. Its leader, Republican Senator Stephen Nass, decried the Democratic administration’s proposal. “The [proposed new order] leaves little doubt that Secretary-Designee Palm is no longer acting in a lawful capacity by circumventing the Supreme Court ruling and once again trying to improperly take control of the daily lives of every Wisconsin citizen,” Nass wrote at the time, according to Wisconsin Public Radio. Palm dropped the proposal, and instead Evers’ administration focused on promoting voluntary guidelines for businesses and citizens.
If Evers himself issued a new safer-at-home order — instead of an unelected state agency head — would it pass legal muster? The Milwaukee Journal Sentinel reported that while some legal experts think it could, Evers himself said he must work with the Legislature.
Meanwhile, nothing has changed Nass’ stance. In a July 2 newsletter, he argued, “We must fight the fear mongering by some government officials desiring excessive public health mandates and unnecessary restrictions of your constitutional rights.”
“I don’t think answers are going to come from above,” Trempealeau County Board member Sally Miller said. Maybe that is not all bad. “One size doesn’t fit all in government for the most part, but definitely in this situation. We have a different community, we have different businesses, and we have different populations.” Trempealeau County needs to look at what’s happening in its own community and do what it can on its own to protect vulnerable citizens.
Do local governments have the power to order shutdowns?
“Like every single municipality in the state, we all had to have the conversation the morning after the Supreme Court threw out the ruling and opened the state,” Miller said. “We wanted to see what we could do as a county to minimize the spread, the impact,” she explained.
From Milwaukee to Menomonie, many counties and some cities rushed to issue their own safer-at-home orders following the Supreme Court’s ruling. However, several of those local governments quickly dropped their orders, with some saying that their orders were not enforceable or wouldn’t stand up to legal challenge, according to WPR. Other cities and counties kept shutdown orders in place and defended them against lawsuits.
State law gives local public health officers a broad mandate to prevent epidemics. “The local health officer shall promptly take all measures necessary to prevent, suppress and control communicable diseases …” Wisconsin Statutes Section 252.03 reads. It continues, “Local health officers may do what is reasonable and necessary for the prevention and suppression of disease; may forbid public gatherings when deemed necessary to control outbreaks or epidemics …” The Wisconsin Attorney General issued an opinion on May 15 advising local governments across the state they do have the power to issue local safer-at-home orders.
At the same time, sometimes one law conflicts with another. In several of the recent lawsuits, citizens claimed restrictions enacted under state law violated their constitutional rights to freedom of religion and assembly under the U.S. Constitution. Trempealeau County Board member Beth Killian said the Wisconsin Counties Association cautioned its members about the possibility of being sued over local orders. “I personally believe in listening to the experts and the doctors and the scientists,” Killian said of recommendations for face masks and physical distancing. However, when it comes down to enforcing such practices, Killian stated, “I just don’t see how you’re going to do it.”
“The health department can shut down a business or an industry if they feel it is unsafe,” Miller said. “But that’s not the kind of thing people do without consulting attorneys,” she added.
Tremplo Co.: Guidelines more effective at this point
Trempealeau County recently required visitors to the county courthouse to wear masks, but its approach to the broader community has been that, for now, education may go farther than enforcement.
Trempealeau County Health Officer Barb Barczak has the authority to issue a local safer-at-home order, Health Department Public Information Officer Kaila Baer stated. “Does she want to? No,” Baer continued. “We really feel that guidelines are going to be more effective at this point in the time. We don’t want to have to get to the point where we have to issue orders, but it is an option.”
For some Trempealeau County leaders, the guidelines-not-mandates approach is a reflection of both the current situation and how people respond to government mandates.
“In every county you probably have a combination of people that want there to be restrictions that everyone has to follow and people who want no restrictions at all,” Baer said. “So by having guidelines in place, we can do our best to help everyone follow these guidelines and help everyone understand the guidelines without having too much pushback or people saying, ‘I don’t want to follow these rules that you’re mandating on me.’”
In part, it is a bet that the county may have more success in educating reluctant citizens on precautions against COVID-19 if those measures are recommendations, not rules.
“When people are forced to do something, then they’ll only do it when somebody is watching,” Miller said. “If people can be taught why you do something, then they’ll do it whether anybody is watching or not.”
Miller, who also sits on the county’s Board of Health, said that, as serious as Trempealeau County’s rapid rise in COVID-19 infections is, the situation may not be so dire yet that such economically painful restrictions are needed. Miller explained that county officials are in daily conversation with the hospital in Whitehall on its capacity. So far, the health care system’s ability to respond to COVID-19 cases has not been overwhelmed, and actually there have only been a few hospitalizations so far, Miller noted. “We’re like everyone,” she said. “We’re looking at the numbers and trying to figure out when are we in a crisis … Those are questions we look at. How close are they to capacity?” Miller added, referring to Barczak, “At this point there is no indication that even the health department feels like that’s something she’s ready to do.” Miller also recognized the valid concerns local business owners hold. “They’re terrified,” she said. “They’re terrified there could be a shutdown. They don’t know if they can survive another one.”
“It’s yes and no,” Baer said when asked about how stable the situation in Trempealeau County was. “We don’t have an excessive amount of cases in the county and that’s good because we’re able to manage those cases, but if we have drastic increase of case like we did a few weeks ago, that’s going to be a problem. It’s going to impact our health department’s ability to contact all of those [infected] people and make sure they stay home.”
In the meantime, the Trempealeau County Health Department’s hope is that citizens and businesses will act voluntarily to keep each other healthy. The county has seen a small measure of success. From a high of nearly five new infections per day in mid-June, the infection rate dropped to roughly two per day and the risk level for COVID-19’s spread dropped from “severe” to “high.” “I see more and more people wearing face coverings. I see more and more businesses with outdoor seating. That helps,” Miller said. In a June 25 press release, Baer thanked businesses, citizens for helping make that happen and allowing the county to ease some of its recommendations. Unfortunately, the numbers are now trending back up toward an average of four new cases per day.
In indoor settings of all kinds, people should stay six feet apart and wear face masks, according to Trempealeau County’s current guidelines. Indoor gatherings should be limited to no more than 15 people, with face masks and social distancing, and outdoor gatherings should not exceed 50 people, the county advises. It is crucial that people with any symptoms of COVID-19 seek testing and medical care if needed, but otherwise isolate at home. Everyone should wash their hands frequently, cover coughs and sneezes, and avoid touching their faces, the health department recommends. “People should be assuming everyone else has it, and they should assume they have it,” Miller said. “As a community, we need to do our part by minimizing our exposure to the virus,” Baer wrote in a press release.
For now, the question of how Wisconsin will respond to the coronavirus lies in the hands of local governments. Perhaps to an even greater extent, it is up to the decisions its citizens make.