As issues continue to develop and change at a quick rate with COVID-19, the Coronavirus, we at the Wisconsin Counties Association (WCA) are working alongside Governor Tony Evers, the Administration, the National Association of Counties (NACo) and our general counsel, Attolles Law, s.c., to provide the latest resources and updates to assist county officials during this unprecedented time.

Temporary Restraining Order Prohibits DHS From Enforcing Emergency Order #3

October 14, 2020

Last week, Wisconsin Department of Health Services (DHS) Secretary Palm issued Emergency Order #3, which limited certain public gatherings across the state. Essentially, the Order limited gatherings to no more than 25% of the total occupancy limits for the room or building, as established by the local municipality unless one of the exceptions listed in the Order applies.

Today, as a result of a lawsuit filed on behalf of the Tavern League of Wisconsin, the Sawyer County Circuit Court issued a temporary restraining order that prohibits DHS and its agents from enforcing Emergency Order #3.

The court set the case for a hearing on Monday, October 19, 2020, at which time both DHS and the Tavern League will be provided an opportunity to argue the enforceability of Emergency Order #3. The court is expected to issue a decision and order shortly thereafter, at which point there will be further clarity regarding the viability of Emergency Order #3.

As many of you are aware, the Association has questions surrounding the enforcement process for Emergency Order #3 separate and apart from the issues raised in the Sawyer County case and has posed those questions to the Governor’s legal counsel.

As of October 14, 2020, the Association continues to wait for guidance and analysis from the Governor’s office. Once the Association has further insight on the Sawyer County proceedings and, as well, the questions surrounding the enforcement process, we will keep you apprised.

The Association is also aware that many of you have grappled with the difficult questions surrounding the appropriate enforcement mechanism for local health orders. As a result of conversations with many of you, the Association’s legal counsel has created a Supplement to Guidance: Enforcement of Local Health Orders Utilizing Process Set Forth in Administrative Code (The Supplement) issued in August.

The Supplement is intended as a resource for county officials, health officers and corporation counsel as you continue discussions surrounding how to best protect your citizens in this time of a global pandemic.
It is important to remember that the enforcement mechanisms are not a “one size fits all” approach. Different counties present different considerations, which will lead to different approaches. We encourage you to work closely with corporation counsel and to the extent the Association can offer any additional assistance, we are happy to do so.

If you have questions or concerns surrounding this update, please do not hesitate to contact the Association. We appreciate the leadership all of you have shown through this challenging time.