Racine lawsuit is a test case for how much power local officials have to control the spread of coronavirus

Six weeks after the Wisconsin Supreme Court threw out the state’s stay-at-home order, city and county officials are learning they may have little ability to control the spread of the coronavirus.

A lawsuit in Racine could determine how much power local officials have to close bars and gyms and take other steps to try to contain the pandemic. The lawsuit — which has gone abysmally for Racine officials in its initial stages — comes as health officials raise concerns about an increase in cases.

The Supreme Court in May issued a 4-3 decision that tossed out a statewide stay-at-home order issued by Democratic Gov. Tony Evers. The lawsuit was brought by Republican lawmakers, who argued they should have a say in any state rules meant to contain the virus.

After winning the case, Assembly Speaker Robin Vos of Rochester and Senate Majority Leader Scott Fitzgerald of Juneau said they didn’t think any state rules were needed. Local officials could handle the illness by putting in place their own rules, they argued.

Indeed, in the hours after the Supreme Court issued its decision, several communities imposed their own orders, many of them mirroring the ones written by the Evers administration.

Now, Racine is facing a legal challenge that has led to the suspension of its coronavirus rules, at least for the time being. Racine County Circuit Judge Jon Fredrickson said during a two-hour hearing Tuesday that he was likely to issue a new decision in the case by Wednesday.

Fredrickson's rulings apply to Racine only. But the case could ultimately reach an appeals court or the Supreme Court, and those courts can issue decisions that are binding on all communities.

Milwaukee and Dane County are among the communities that have put limits on how businesses can operate during the pandemic. Milwaukee officials are considering requiring people to wear masks in public. 

Racine’s public health administrator, Dottie-Kay Bowersox, issued a coronavirus order on the day the Supreme Court issued its opinion. Soon afterward, David Yandel, the owner of Harbor Park CrossFit, sued.

Fredrickson in June blocked the city’s order, saying Bowersox was exhibiting “despotic power.”

In response, the city council passed an ordinance codifying the restrictions on how businesses must operate and explicitly giving Bowersox the ability to order businesses to close.

The move did not go over well with the judge. He quickly blocked the revived order, calling it a “direct attack” on his initial ruling.

“Going forward, this court warns (Bowersox and the city of Racine) that it will not hesitate to issue an order to show cause for contempt if any one, or both, of defendants attempt to undermine the orders of this court,” he wrote last week. “There are no strikes two, or three, in this court.”

During Tuesday's hearing, he said he was likely to uphold many of Racine's coronavirus policies because the city "does need to be protected." But he said he was likely to toss out the city's rules limiting gatherings, saying they appeared to interfere with the right to peaceably assemble that's guaranteed in the state constitution. 

"It’s the only part of our constitution that says 'shall never be abridged,'" he said of the right to assembly. 

Democratic Attorney General Josh Kaul’s office weighed in on the case this week on the side of Racine.

Assistant Attorney General Colin Hector argued in a court filing that the Supreme Court decision had little bearing on what local officials could do because that case was focused on how state rules — not local rules — are written. He noted state law gives local authorities the ability to impose “all measures necessary to prevent, suppress and control communicable diseases.”

The Supreme Court’s decision makes it “all the more important that local authorities be able to respond to the conditions they face in their jurisdictions,” he wrote. “Holding otherwise would be harmful to public health and legally unjustified.”

Hector contended the order's effect on the CrossFit business were limited, writing that they would be required to have workers wear gloves while cleaning.

The gym's attorney, Anthony Nudo, said his main concern is that the city is trying to give the health administrator carte blanche to put in place any rules she wants. That would mean she could close the business or impose onerous restrictions with no notice, he said. 

"It's on its face unconstitutional because it's overtly overbroad," he said.

However the case goes, an appeal is all but certain, he said.

"These are the types of cases that go to the Supreme Court," he said. "I believe people are passionate on both sides."

Racine Mayor Cory Mason is concerned about the possibility the courts could limit the powers of the city's health department, said Mason spokesman Shannon Powell. Cases are trending in the right direction in Racine, but officials are worried about national data showing a surge of cases, he said. 

"We trust our public health officials to make the best decision possible, based on science — not politics," Powell said by email. 

Contact Patrick Marley at patrick.marley@jrn.com. Follow him on Twitter at @patrickdmarley.