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Wisconsin Spotlight | Aug. 24, 2020 

MADISON — It’s the fast-food of government overreach. 

The Wisconsin Counties Association has been crafting and reworking a template for county COVID-19 health orders, like one that apparently is being considered by Ozaukee County and others. 

WCA and local government types don’t seem interested in talking. Counties Association Executive Director Mark O’Connell has opted not to return multiple calls from Wisconsin Spotlight over several weeks. 

Wisconsin Spotlight sought a copy of the template from the Ozaukee County officials. Representatives from the Health Department, the county administrator’s office and the corporation counsel did not return several phone calls. 

WCA has been pushing one template or another since March 17, about a week before Gov. Tony Evers issued his Emergency Order 12. 

According to the original draft, county boards would declare “that an emergency exists within the County by reason of an imminent threat of disaster impairing medical care, health, and other critical systems of the County due to the spread of COVID-19…” 

The template asserts boards may order, by ordinance or resolution, “whatever is necessary and expedient for the health, safety, protection, and welfare of persons and property within the County.” 

That open-ended “whatever is necessary and expedient” part has raised alarm bells among citizens around the state who fear their local governments will go too far and strip away their liberties, much like they believe the Evers administration did.

Several county boards, at the urging of some very concerned residents, have voted down such ordinances in recent months. In Jefferson County, for instance, some 500 citizens opposed a health order, a show of opposition that led to unanimous defeat. 

Last week, more than 100 Sheboygan County residents protested a proposed health ordinance, calling for the county administrator to be fired, according to the Sheboygan Press. The board referred the proposed ordinance, said to be influenced by the WCA’s guidance, to the executive committee for further review. 

As Empower Wisconsin reported, the ordinance would create a civil enforcement mechanism for any countywide public health orders issued by the county health officer. Supervisors would first have to review the orders, however, before they go into effect. The board may then direct the health officer to do what is “reasonable and necessary” for the prevention and suppression of the disease.

But the ordinance is short on specifics, leaving much open to the discretion of an unelected bureaucrat.

“There’s not a lot of details. It says the officer can make orders they deem appropriate (in dealing with communicable diseases) and in banning pubic gatherings,” Sheboygan County District Attorney Joel Urmanski told Empower Wisconsin.

The Counties Association has tried to sell its health ordinance template as a product of broad stakeholder buy-in. A source familiar with the situation, however, says the people at the table are mostly government types. 

WCA has had to change some things up since May, when the Wisconsin Supreme Court in a 4-3 ruling struck down the Evers administration’s overreaching emergency order. 

After the ruling, Kenosha County Health Officer Dr. Jen Freiheit announced the county’s stay-at-home order had been withdrawn due to guidance from the Wisconsin Counties Association’s legal arm suggesting that the Supreme Court ruling also applies to local orders, according to the Wisconsin State Journal. 

Scott Manley, Wisconsin Manufacturing & Commerce’s executive vice president of Government Affairs, said the Supreme Court decision was very clear in how it restrained the authority of the Wisconsin Department of Health Services. 

“The authority for local governments is actually narrower,” Manley said of state law. “If fact, state statutes say local health regulations cannot conflict with either state law or other rules promulgated by DHS.” 

But aggressive local governments have, led by the specious legal reasoning of liberal Attorney General Josh Kaul, driven even stricter health orders, limiting the liberties of businesses and cities — in defiance of the Supreme Court ruling. 

“I don’t think the attorney general’s interpretation makes sense when you actually read the law itself,” Manley said. “I expect he’s reading expansive authority into the law because he fundamentally believes in a bigger more controlling government because that’s his political view. He believes the government is the entity that knows best, which is impacting his legal analysis.”

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