In the hours after the Wisconsin Supreme Court struck down the Department of Health Services’ Safer at Home directives to protect the public against coronavirus, numerous municipalities established or re-emphasized their own requirements and measures.
But will those moves stand up in a court of law if the state legislature and the Evers administration come to a deal on a new statewide policy?
“Perhaps it’s not possible local units of government can simply attempt to replicate the executive order,” said Wisconsin Institute for Law and Liberty President and General Counsel Rick Esenberg on WTMJ’s Steve Scaffidi Show. Esenberg assisted the GOP legislators’ efforts in the lawsuit that went to the Supreme Court.
“They would have the authority to do something, but that authority would be more narrow than the very broad assertion of power with the Safer-at-Home power.”
Milwaukee Mayor Tom Barrett directed people in the City of Milwaukee to follow the city’s own Safer-at-Home directive from March 25.
Numerous suburbs made some alterations to Safer-at-Home guidelines with fewer limits on activity, but stronger limits against gatherings of 10 people or more.
Esenberg believes there could be legal moves against any municipality that continues a broad-based philosophy.
“To the extent these orders are being re-issued as a stay-at-home order, prohibiting travel, closing all non-essential businesses, there could be some challenges there.”
He also described how if someone contracts coronavirus because they went to a bar, restaurant or other business that re-opened, it would be very hard to successfully litigate a case against either that business or the municipality that allowed it to open.
“The difficulty is if someone gets infected with coronavirus, there’s really no way (to trace it),” said Esenberg, who encourages Governor Evers and Republican legislators to work out a compromise coronavirus protection plan for the public.
“Rather than police that through litigation, it would be far preferable for the Governor and legislature to work something out.”