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After 'chaos,' Green County rescinds safer-at-home order
First, it was off. Then it was on. Now it's off again.
The Historic Green County Courthouse in downtown Monroe. (Times file photo: Anthony Wahl)
MONROE — First, it was off. Then it was on. Now it's off again.

Green County lifted its safer-at-home health order Monday afternoon, four days after it was put in place and eight days before it was set to end on May 26.

The decision is legal, not health-related. Green County Public Health Director RoAnn Warden stressed that the coronavirus is still in the community.

"Numbers locally and in Wisconsin continue to grow. We strongly encourage everyone to follow recommended best practices for individuals, businesses and community groups," she said. These practices include washing hands frequently, avoiding touching your face, maintaining a six-foot distance from others, wearing a face covering in public and avoiding group gatherings of 10 or more people who are not living in the same household.

The problem with the order was enforceability, said Green County District Attorney Craig Nolen.

Lifting the order is "nothing that we exactly want to do entirely, but it's the legally appropriate thing to do," he said.

The Wisconsin Supreme Court 4-3 ruling last week to block the state's "Safer at Home" extension, which was set to expire May 26, plunged many counties into confusion and sent them scrambling to figure out a legal way to enact local rules.

Chief Justice Patience Roggensack wrote in her majority opinion that Andrea Palm, who heads the state Department of Health Services, did not follow the law in creating an order that extended Gov. Tony Evers' initial "Safer at Home" order and therefore "there can be no criminal penalties for violations of her order."

The governor's emergency powers "are premised on the inability to secure legislative approval given the nature of the emergency," Roggensack wrote. "For example, if a forest fire breaks out, there is no time for debate. Action is needed. The Governor could declare an emergency and respond accordingly. But in the case of a pandemic, which lasts month after month, the Governor cannot rely on emergency powers indefinitely."

Justice Brian Hagadorn, in a dissenting opinion, argued that the Supreme Court is "not here to step in and referee every intractable political stalemate." He suggested the legislature "may have buyer's remorse for the breadth of discretion it gave to DHS."

"Because this is a challenge to executive branch enforcement of clearly on-point statutes, I conclude the legislature — as a constitutional body whose interests lie in enacting, not enforcing the laws — lacks standing to bring this claim. Such claims should be raised by those injured by the enforcement action, not by the branch of government who drafted the laws on which the executive branch purports to rely," he wrote.

In response to the Supreme Court's decision, counties around the state faced a decision whether to enact their own local health orders — and if it was even legal for them to do so.

"Chaos" is how Art Carter, the Green County board chair, described the situation.

On May 14, the day after the Supreme Court ruling, Green County Public Health adopted several of the state's "Safer at Home" orders as a local order enforceable under state law and punishable as a crime by up to 30 days in jail.

But it was unclear to many whether local orders could be enforced like that under state law.

On May 15, responding to a request for guidance from Outagamie County, Attorney General Joshua Kaul issued an emergency opinion that it "is advisable to limit enforcement ... to ordinances or administrative enforcement." He noted, however, that "nothing in the Supreme Court’s decision even arguably limits other measures directed by a local authority."

That afternoon, Warden reported that Green County's local order had been modified to indicate that it was enforceable under Green County code and violations were punishable by a forfeiture of $50 to $500.

But in examining this further, Nolen and Green County Corporation Counsel Brian Bucholtz also saw a problem with enforcing the order through county code.

Green County code is not universally enforceable across the county since municipalities like Monroe and Brodhead have their own, separate codes, Nolen said.

"Our code was not prepared for any sort of pandemic situation," Nolen said. The pandemic brings up legal questions about the authority of public health officers and constitutional implications: "Wisconsin law has just been caught totally flat-footed with regard to what we can do in these sorts of situations."

Going forward locally, "we need to address these sort of issues and situations and enforceability," Nolen said. One example for navigating enforcement countywide would be mutual adoption agreements with municipalities.

When Green County adopted the local order last week, county officials "were trying to figure out and maintain some sense of the status quo" in the region, Nolen said. Dane and Rock counties still have local safer-at-home orders in place, although Rock County announced today it is ending its order Thursday. Lafayette County officials decided late May 14, after Green County announced a local order, that it would not be adopting such an order.

With the local order lifted, rules about social distancing and bans on group gatherings are now just recommendations. "Non-essential" businesses that were ordered to close in March, such as bars, restaurants, hair salons, movie theaters and gyms, can now open without restrictions.

"Hopefully it will benefit those businesses that were not allowed to be open," said Carter. He said he got "maybe three or four" calls in recent days from people in the county who were angry about the local order. But, he noted, "I don't think I had a call from anyone who was directly involved (like a business owner). It was all from people who said they felt it was too much and affected other people."

"Time will tell" whether the county without an order can keep COVID-19 cases from rising, Carter said. 

"We're not bad here. Can we stay good? It's up to the people, I think," he said. "Just because it's off doesn't mean you go wild. The disease is still out there. It didn't go away."

As of May 19, Green County had 46 confirmed cases of COVID-19, with 37 recovered. Of the roughly 940 residents who've been tested, about 5% tested positive. One resident who tested positive is currently hospitalized.

"We're hopeful that people use good judgment and continue safe hygiene practices," said Mike Sanders, public information officer for the Green County Emergency Operations Center (EOC), which has been meeting several times per week to coordinate the county's response to the pandemic.

"We're in uncharted territory for everybody," said Sanders, noting that reopening is dependent on balancing the comfort levels of businesses, employees and customers.

Melissa Even, Monroe Chamber of Commerce director, sent out a survey Monday to all 320 members of the organization "to get a gauge on what the business owners themselves feel is their situation." As of Tuesday morning, she had received 54 responses.

A few local medical service providers expressed concern about being able to maintain their level of medical-grade personal protective equipment, but "overwhelmingly people feel like they have the tools in place (to follow safety precautions)," Even said.

"I firmly believe that the original order was maybe not perfect but something needed to be put in place in an emergency situation," she said, referring to Gov. Evers' "Safer at Home" order from March.

Now, she's confident local businesses can reopen safely and responsibly.

Green County Public Health is directing businesses to the Wisconsin Economic Development Corporation for guidance on how to safely re-open, as well as to their industry trade associations and their insurance carrier for best-practice recommendations.

Warden said her job as a public health director "is to protect everyone in the county, which means everyone, even the most vulnerable."

She recognizes that some residents who feel strong and healthy may be comfortable gathering in large groups, but she said "people need to take personal responsibility" and know that the new coronavirus is "highly contagious," has no proven treatment and no vaccine.

"It is a risk that people are taking. With risk, sometimes it works for you, sometimes it doesn't," she said.