MADISON — Two Green County residents are among the 17 Wisconsinites who filed a lawsuit May 20 in federal court claiming public health orders related to the coronavirus pandemic violated their constitutional rights.
Green County Public Health Director RoAnn Warden is among the 10 local health officers named as defendants in the lawsuit. Gov. Tony Evers, two local police chiefs, Wisconsin Elections Commission members and Andrea Palm, who heads the Department of Health Services, are the other defendants.
Plaintiffs including Eric Skelton of Monroe and Jenny Turkelson of Brodhead claim Palm’s extension of the governor’s initial month-long “Safer at Home” order from March — and subsequent local orders — stripped them of their First Amendment rights to freely practice their religion.
Skelton “takes part in home worship gatherings with others who are not members of his household,” the lawsuit notes. Skelton and his wife founded God’s Green Acres, a Christian ministry, in 2007.
Order 28, Palm’s safer-at-home extension, prohibited “all public and private gatherings of any number of people that are not part of a single household,” with the aim to continue to slow the spread of the contagious new coronavirus.
Exceptions were made for weddings, funerals and religious entities, however these gatherings were directed to “include fewer than 10 people in a room or confined space at a time” and to adhere to social distancing requirements “as much as possible.”
In a 4-3 decision, the state Supreme Court blocked Palm’s order May 13, ruling that it unlawfully extended the governor’s emergency powers. Chief Justice Patience Roggensack wrote in her majority opinion that “in the case of a pandemic, which lasts month after month, the governor cannot rely on emergency powers indefinitely.”
Counties across the state, including Green and Rock, quickly implemented similar local orders to replace the state order. Green County’s order was rescinded several days later after local officials decided it could not be enforced countywide due to variations in municipal codes. Rock County has also ended its order.
The lawsuit is brought on the basis of reasons other than religious freedom.
Turkelson is among a group of six plaintiffs who claim public health orders impede their rights to circulate recall petitions for state or local officeholders.
The lawsuit notes that Wisconsin law requires signatures be obtained in person. Local orders, including in two of the state’s most populous areas, the City of Milwaukee and Dane County, “have made it impossible to exercise the constitutional right to recall.”
Another plaintiff, Madison Elmer of Walworth County, was one of the organizers of the April 24 rally to protest “Safer at Home” orders at the State Capitol in Madison. She claims her First Amendment right to peaceably assemble was denied when her permit for the event was denied on the basis of Order 28.
Blong Yang, a restaurant owner in Grand Chute, also claims his constitutional rights were violated. His business, Eggrolls, Inc., specializes in Hmong egg rolls “and was suffering as a result of Order 28,” the lawsuit notes. Eggrolls, Inc. was featured on the Cooking Channel show “Man v. Food.”
Restaurants were ordered to close under Palm’s “Safer at Home” extension but allowed to offer take-out and delivery.
Yang told police he would open his restaurant for dining, in spite of the order. A Grand Chute police officer informed Yang on May 13 he faced potential criminal charges, imprisonment and possible loss of his business license, but it “is not known whether the claimed authority for this threat was Order 28 ... or some other local order issued in Outagamie County,” according to the lawsuit.
Meanwhile, the lawsuit notes, the Walmart store next to Eggrolls, Inc. was allowed “to sell food touched by multiple people and handpicked prior to consumption” and customers “were free to buy an apple, a pear, a cucumber or a mango that was touched by countless and unknown other shoppers and employees.”
The lawsuit claims public health orders violated the plaintiffs’ rights to equal protection “by impermissibly prohibiting gatherings with political or religious purposes (and) by allowing so-called ‘essential’ organizations or persons to do what others similarly situated are not.” It also claims the orders treated those “exercising First Amendment freedoms in a discriminatory and dissimilar manner.”
The plaintiffs are represented by Joseph W. Voiland of the Cedarburg-based Veterans Liberty Law. Voiland is a former Ozaukee County Circuit Court judge.
The governor’s chief legal counsel, Ryan Nilsestuen, said in a teleconference call with reporters May 21 that the state will be defending against the lawsuit and he believes it should be dismissed.
“Local public health officers have been on the frontlines in dealing with the disease and now unfortunately they’re being put at the frontlines of the litigation involving these, but I’m optimistic that this lawsuit will go nowhere,” he said.
Dane County Executive Joe Parisi said in a statement he will “vigorously defend common sense provisions based on public health guidance to protect the well-being of the residents of Dane County.
“We do not want to become the next large community consumed by the ravages of this highly contagious, debilitating virus.”
