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June 1, 2020

5/22/2020 7:29:00 AM
Some localities try to stay locked down, but legal confusion reigns
Oneida County offers restrictive guidelines but no actual order
Richard Moore
Investigative Reporter

When the Supreme Court declared the state's Safer at Home order "unlawful, invalid, and unenforceable," some thought - and many had hoped - that the lockdown was over across the state, but it turns out that some local governments had other ideas.

In short, the majority opinion determined that Andrea Palm, the secretary-designee of the state Department of Health Services (DHS), had to follow emergency rule-making procedures established by the Legislature to enact the edicts that she did. By merely asserting her will, including establishing criminal penalties for violating her decrees, she exceeded her statutory authority, the justices found.

However, in short order after the court's decision, Brown, Door, Dane, Milwaukee, Kenosha, Florence, Marquette, and other counties issued their own orders extending Safer at Home locally, as did cities such as Madison, Milwaukee, Appleton, Menasha, and Green Bay.

That's because a separate provision in the statute visited by the Supreme Court - but which the court did not directly address - also appears to give local public health authorities broad powers in a public health emergency.

For example, it directs the local health officer to promptly "take all measures necessary to prevent, suppress and control communicable diseases," and permits the health officer to do what is reasonable and necessary for the prevention and suppression of disease, including forbidding public gatherings.

What's more, if local authorities fail to enforce communicable disease statutes and rules, "the department shall take charge," the statute states.

But the same controversy that engulfed Palm's seemingly broad statutory powers soon swallowed the local provisions, and within hours of the Supreme Court's decision the Wisconsin Counties Association (WCA) was cautioning counties about the exercise of local power.

"The court's decision raises several issues that counties will need to confront in the coming hours and days," the WCA statement said. "Many local health officers have issued orders under the authority granted by Wis. Stat. 252.03 and other local health officers may be contemplating the issuance of orders similar to the Safer at Home Order."

However, the WCA cautioned, while that statute provides a local health officer with broad regulatory authority, enforcement of local health orders proceeds under the same statute relating to enforcement of statewide orders like Safer at Home.

"This is the same statute that the court cited in its decision as problematic in terms of enforcement of the Safer at Home Order," the WCA stated. "As a result, it is unclear whether a local health order would, in the court's view, suffer from the same deficiencies that caused the court to invalidate the Safer at Home Order."

The WCA subsequently reiterated that it was not taking a position on the legality of any such orders and had issued no formal guidance.

Many local municipalities took the caution to heart, though, and, just like that, began rescinding their local safer-at-home directives. Kenosha County, Brown County, Manitowoc County, and others rescinded the orders, as did cities such a Menasha and Appleton, while other cities and counties, most notably Madison and Milwaukee, and Dane County, held theirs in place, arguing they were on solid legal footing.

The divisions were again broadly along partisan lines.

In Oneida County, the county's leaders and public health officials have issued a stringent set of guidelines that resemble the governor's now defunct Badger Bounce Back program, which promoted a phased opening of the state. However, Oneida County health officer Linda Conlon did not issue an order making those phased re-openings and restrictions mandatory.

Had she done so - or if she does so - a court challenge would likely ensue, as it probably will in other places with local lockdown orders.



Different governments, same arguments

For conservatives who had hailed the Supreme Court's decision, it is clear that local public health authorities can accrue no more power than the state secretary DHS.

"If Executive Order 28 went too far for state officials, it would presumably go too far for local officials," Rick Esenberg, the president and general counsel for the Wisconsin Institute for Law & Liberty, told Empower Wisconsin. "How far they can go, though, will be a matter of future litigation."

On the other side of the ledger, some attorneys argue that even restrictive local orders mirroring Safer at Home are legal. One of the primary arguments is that the Supreme Court determined the Safer at Home order should have been an administrative rule and that DHS should have followed statutory rule-making procedures, which Palm failed to do. That would implicate the authority of state agencies but not that of local governments.

What's more, the statutory provisions governing local health officers is not beset by a limiting listing of their authority, which does ensnare the DHS secretary. Indeed, the statutory provision is different for local public health officials, wrote attorney James M. Kalny in the National Law Review.

"In contrast the statute grants the local health officials the authority to do what is reasonable and necessary for the prevention and suppression of disease without any qualification of rule promulgation or limiting list of authority," Kalny wrote. "That forms a pretty good statutory basis for the local health authority to adopt rules that are consistent with medically recognized best practices to prevent the spread of a highly contagious and potentially lethal disease."

In addition, Kalny continued, there is home rule to consider.

"Wisconsin has recognized that local governments have home rule authority to enact police regulations that are deemed in the interest of their communities and are not contrary to or preempted by state or federal law," he wrote. "In this case there is no federal guidance, and what state law there was has been removed by the Supreme Court."

State attorney general Josh Kaul took a middle ground, saying the local orders were legal so long as criminal penalties were not assessed.

"First, the supreme court's decision addressed only DHS's authority found in Wis. Stat. § 252.02," Kaul wrote. "That statute does not govern the authority of local health officers, which is separately set out in Wis. Stat. § 252.03. ... Because the court decision addressed a different statute applicable to a state agency, and not the statute applicable to local authorities, the Palm decision is not directly controlling on powers under the latter statute."

However, Kaul continued, though the court did not directly address the local health authority statute, there were statements about criminal sanctions in the Palm decision that local authorities should consider.

"The court concluded that Safer at Home 'does not rely on a statute within ch. 252 defining the elements of the crime' and that 'in order to constitute criminal conduct proscribed by statute, the conduct must be set out with specificity in the statute to give fair notice,'" he wrote. "It is advisable to limit enforcement ... to ordinances or administrative enforcement."

Third, Kaul continued, the Palm decision highlighted three particular exercises of DHS's powers as outside the scope of its statutory authority, directing people to stay at home, forbidding certain travel, and closing certain businesses.

"Even as to those three measures, the analysis may not apply to local powers under Wis. Stat. § 252.03," he wrote. "The court's reasoning emphasized the availability of criminal sanctions for violations, and applied an interpretative analysis using provisions of 2011 Wis. Act 21 and Wis. Stat. ch. 227 that apply only to state agencies. A local order issued under Wis. Stat. § 252.03 that does not threaten criminal penalties, as recommended above, cannot run afoul of the court's first concern, and 2011 Wis. Act 21 and chapter 227 would not apply to a local authority."

Nevertheless, Kaul cautioned, the local authority should ensure that any measures that direct people to stay at home, forbid certain travel, or close certain businesses speak specifically to the local authority's statutory power to "prevent, suppress and control communicable diseases" and "forbid public gatherings when deemed necessary to control outbreaks or epidemics."

Finally, Kaul opined, nothing in the Supreme Court's decision even arguably limits other measures directed by a local authority under the local health authority statute.

"The court rested its rejection of Safer at Home's provisions other than staying at home, travel, and business closure solely on its conclusion that DHS had to engage in emergency rule making under Wis. Stat. § 227.24," he wrote. "Local authorities are not subject to chapter 227, and so that reasoning has no application to an order issued by a local authority."



The problem for local governments

As of this writing, the lack of clarity when it comes to adopting and enforcing local health orders remains unclear. Skirmishes are unfolding even within municipalities, and there are cogent arguments on all sides.

In the end, though, those who advocate for powerful local ordinances that reproduce much or most or all of the state's Safer at Home order face two huge hurdles.

The first is, in addition to invoking the need for administrative rule-making, which does not apply to local authorities, the justices found that what Palm had claimed was expansive power in the language governing the powers and duties of DHS actually was less expansive than it was limiting.

Indeed, as Kalny observed, the language - "the department may authorize and implement all emergency measures necessary to control communicable diseases" - followed a pretty exhaustive list of permissible emergency measures, such as closing schools, providing medical aid and temporary hospital accommodation, forbidding public gatherings in schools, churches, and other places to control outbreaks [paragraph 3 of the applicable statute], and especially, in paragraph 4, to quarantine and disinfect infected people and those suspected of being infected.

Prohibiting nonessential travel, closing nonessential businesses, and private gatherings went far beyond those enumerated emergency measures, the court found.

The Supreme Court homed in on that specificity.

"However, Order 28 goes far beyond what is authorized in Wis. Stat. § 252.02(4) [the list of what the department can do]," the decision stated. "For example, Order 28 exceeds the § 252.02(4) authority to quarantine those infected or suspected of being infected. Instead, Palm quarantines '[a]ll individuals present within the state of Wisconsin' by ordering them 'to stay at home or at their place of residence' with exceptions she deems appropriate."

The decision also observed that Palm prohibits "[a]ll public and private gatherings of any number of people that are not part of a single household or living unit," a declaration not based on being infected or suspected of being infected and one not otherwise statutorily enumerated.

Of course, the court acknowledged, Palm "skips over this obvious overreach" and contends that two other more general provisions in paragraph 4 - that the department may promulgate and enforce rules or issue orders for guarding against the introduction of any communicable disease into the state and for the control and suppression of communicable diseases ... - are her source of power.

"However, once again, Order 28 is overly broad in its proscriptions," the decision, written by chief justice Patience Roggensack, stated. "Áll forms of travel are prohibited except for essential travel as defined in this Order. If this restriction supposedly is connected to the first permissible action under § 252.02(4) to 'guard against the introduction of any communicable disease into the state,' Order 28 goes well beyond entry of communicable disease into the state. It prevents 'All forms of travel,' not simply interstate travel."

Furthermore, the decision continued, nothing in paragraph 4 permits Palm to close "for-profit and non-profit businesses with a facility in Wisconsin, except those she defines as essential businesses and operations."

"She cites no authority for this vast seizure of power," Roggensack wrote.



Twiddledee, Twiddledum

The statutory language for local health officers could suffer the same fatal flaw.

As Kalny pointed out, the statutory language contains no limiting list of authority, and it's language also seems pretty expansive: "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 and shall advise the department of measures taken."

But a closer reading in context reveals two important facts about that power. The language directly following the above sentence, for example, clearly states that the local health department takes charge if [emphasis added] the local authorities fail to enforce the state's communicable disease statutes and rules.

That is to say, local health departments are only empowered to enforce state rules and statutes that municipalities aren't enforcing, and that those statutes and rules are what the Legislature feels is "necessary and reasonable" action.

In other words, as part of the state's administrative arm, local health officers cannot create rules and statutes on their own, any more than the DHS secretary can. If the two sentences are read together - and they should be - local health officials can only do what the state allows them to do by promulgated rule or statute, no matter the lack of an explicit limiting list of authority.

Moreover, that local health action is strictly governed within the limits of what the state allows is demonstrated in the language governing the powers and duties of DHS, in that list of measures the state can take: "The department may issue orders for any city, village or county by service upon the local health officer."

That extends and applies the limiting list of authority to counties.

Taken all together, the language of the statutes clearly preserves a democratic role in any emergency action, and establishes a logical sequence by which the state and local health agencies act in coordination.

To wit, in addition to express statutory powers (closing schools, banning public gatherings), DHS can promulgate an emergency rule for certain other measures, which preserves a role for the Legislature. After the rule is promulgated, if local governments are not enforcing the rule or express statutory directives from DHS, local health officers can step in to take over, and, if that authority does not do so, DHS may compel them to.

Nothing in the language, though, suggests that any local health authority can enact any order that does not follow the agency's express statutory authority or that is not derived from a legally promulgated rule.



Constitutional claim

All those arguments notwithstanding, none of them address underlying constitutional claims that have been and still could be brought.

Two private citizens brought a lawsuit alleging that Evers's Safer at Home order violated their rights to freedom of worship, speech, and travel under the Wisconsin constitution. That lawsuit appears moot now that the high court has already rejected Safer at Home.

But lawsuits could challenge similar local health orders on the same grounds, and, in their concurring opinion in the Safer at Home decision, Supreme Court justices Rebecca Bradley and Daniel Kelly raised the constitutional questions, perhaps foreshadowing the legal arguments.

In her opinion, for instance, Bradley wrote that, under the state constitution, power derives from the consent of the governed, and she included in her analysis all public officials, not just state agencies.

"The people of Wisconsin never consented to any elected official, much less an unelected cabinet secretary, having the power to create law, execute it, and enforce it," Bradley wrote. "Whenever any branch of government exceeds the boundaries of authority conferred by the people, it is the duty of the judicial branch to say so."

Even if the Legislature did give Palm the powers she said it did, Bradley continued, such a statutory transfer of power would be unconstitutional.

"Statutory law being subordinate to the constitution, not even the people's representatives in the legislature may consolidate such power in one person," she wrote. " ... The statutory language is indeed sweeping, and if interpreted expansively, calls into question its constitutionality as an impermissible delegation of legislative power never authorized by the people."

As a general principle, Bradley wrote, it is the duty of the Legislature to create the law, and any delegation of lawmaking responsibility to administrative agencies like DHS must be carefully circumscribed in order to avoid the people being governed by unelected bureaucrats.

Under that analysis, the Legislature would likewise not be able to confer such power upon local health authorities.

In his concurring opinion, Kelly sought to explain why the Legislature could not possibly have given the secretary the authority she believed she had.

Much like local health authorities are now claiming the power to act, so Palm claimed the power simply "to act," as Kelly observed in his opinion.

"But our constitution does not confer on any governmental official, bureaucrat, or employee a generalized power to 'act,'" Kelly wrote. "There are three powers on loan to our government - legislative, executive, and judicial. To the extent governmental officials may act at all, it is only within the context of one of those powers."

The Legislature has the power to enact laws and the executive to enforce them, and one branch cannot delegate to the other any such core powers, Kelly wrote.

"In the constellation of constitutional doctrines, this serves as one of the central organizing principles," he wrote. "Without it, our constitution would be an incomprehensible jumble."

The heart of Palm's error, Kelly wrote, was her failure to recognize that her order contained both executive and legislative components.

"Executive action does not exist in a vacuum," he wrote. "It must execute on a policy - a policy chosen by the Legislature or promulgated as a rule. When such a policy decision has not been promulgated by the agency or adopted by the Legislature, and the executive acts anyway, it is by that very action either announcing adoption of the policy or erroneously assuming its existence."

Likewise, it could be argued that the executive actions now being contemplated on the local level either are fashioning the policies upon which the orders are based or erroneously assuming their existence, and, under Kelly's analysis, would be unconstitutional.





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