Emergency Orders-Plans - Local
League of Wisconsin Municipalities Toolkit for Implementing Municipal Safer at Home Restrictions
When the Wisconsin Supreme Court struck down DHS’s Emergency Order 28, Safer at Home, as invalid and unenforceable on May 13, local governments were presented with the question of whether to adopt and enforce local safer at home restrictions to quell the spread of COVID-19 within their communities and to ensure local health facilities have adequate capacity for dealing with COVID patients. Municipalities without a health department must abide by any safer at home restrictions imposed by the county health officer. If the county health officer has not issued a county safer at home order, municipal policymakers have the discretion to issue safer at home orders to prevent or minimize the spread of COVID-19 within their communities, pursuant to their emergency powers under Ch. 323. While most communities as of early summer 2020 have decided not to enact local safer at home orders, the League has prepared this Local Safer at Home Tool Kit in case circumstances change in the future and local policymakers become interested in adopting safer at home orders to address a surge in COVID-19 cases within their community. The Toolkit explains municipal authority to adopt and implement safer at home restrictions, includes sample local safer at home orders, and provides links to county level COVID-19 data and metrics to support local safer at home orders. Access the League’s toolkit.
Attorney General’s Opinion
This Attorney General opinion addresses the following questions: whether the Wisconsin Supreme Court’s decision in Wisconsin Legislature v. Palm controls local powers; whether that decision’s discussion of criminal penalties should be considered by local authorities; whether that decision’s specific focus on certain DHS powers related to staying at home, travel, and closing businesses should be considered by local authorities; and whether there are any other substantive limits on local powers implied by the Palm decision. 5/15/20
Wisconsin Local Government Authority to Issue Local Stay-in-Place Orders by The Local Solutions Support Center 5/14/20
On May 13, 2020, the Wisconsin Supreme Court struck down DHS’s Emergency Order 28, Safer at Home, as invalid and unenforceable. See Wisconsin Legislature vs. Andrea Palm, 2020 WI 42. For more information on the Court’s opinion click here.
The following FAQs address some of the questions member municipalities are asking:
In the absence of a county or local health department order, does a municipality have authority to impose restrictions similar to Safer at Home, such as prohibiting public gatherings of a certain size and imposing restrictions on businesses?
Yes, municipalities may impose such restrictions pursuant to an emergency declaration under Wis. Stat. § 323.11, but any regulations should be narrowly tailored to the particular circumstances of the local emergency.
Under Wis. Stat. § 323.14(4)(a), which governs local governments’ powers and duties during a declared emergency, local governments have the general authority to order, by ordinance or resolution, “whatever is necessary and expedient for the health, safety, protection, and welfare of persons and property within the local unit of government in the emergency,” including “the power to bar, restrict, or remove all unnecessary traffic, both vehicular and pedestrian, from the highways...” Although § 323.14(4)(a) doesn’t explicitly mention controlling communicable diseases – in contrast to Wis. Stat. § 252.03 which provides that local health departments may do whatever is reasonable and necessary to prevent and suppress disease, including forbidding public gatherings when deemed necessary to control outbreaks or epidemics – § 323.14(4)(a) is broadly written to grant local governments authority to enact measures to protect the public health and welfare in an emergency.
Any restrictions declared pursuant to a local emergency should be narrowly tailored to address the particular circumstances of the municipality’s emergency; those circumstances should be detailed in the emergency resolution or ordinance. Restrictions that may be justified in one municipality may not be justifiable in another. Additionally, a municipality should clearly articulate the rationale underlying the restrictions imposed to illustrate that the restrictions are based on facts rather than suppositions – e.g., capacity limits should be based on a defined formula derived to achieve compliance with the CDC’s social distancing recommendations in a given amount of square footage rather than setting a numerical capacity limit with no explanation for how it was reached. Municipalities should avoid imposing restrictions that appear arbitrarily defined. Moreover, some restrictions may impact individuals’ constitutional rights (e.g., right of assembly), so municipalities should strive to craft restrictions in a content-neutral manner and as narrowly as possible to address the emergency situation in their community.
The Wisconsin Supreme Court’s recent decision overturning DHS’s Safer at Home Order (see Wisconsin Legislature v. Andrea Palm) should not be read as precluding local governments from enacting similar restrictions; narrowly crafted municipal restrictions should withstand judicial scrutiny. First, the Court’s opinion was limited in scope and did not address local government authority. It only pertained to DHS’s authority under Wis. Stat. § 252.02 and largely found fault with an unelected official promulgating a rule without following the emergency rulemaking procedures outlined in Ch. 227 of the Wisconsin Statutes. Local governments, however, are not subject to those rulemaking procedures, and restrictions imposed under § 323.14(4)(a) are imposed by elected officials – e.g., elected members of governing bodies. Second, the Court was concerned about the ability to impose criminal liability for violations of DHS’s order. However, that should not be a concern here because Wisconsin municipalities cannot create crimes; therefore, they cannot impose either a fine or imprisonment as a sanction for violation of a municipal ordinance. State v. Thierfelder, 174 Wis. 2d 213, 222, 495 N.W.2d 669 (1993).
Finally, an interim opinion issued by Wisconsin Attorney General Josh Kaul on May 15, 2020 (“opinion”) supports the conclusion that the Supreme Court’s decision did not impact local authority to address the COVID-19 pandemic. The AG opinion concludes that the Supreme Court’s decision is limited in scope and does not constrain local health departments’ authority to issue similar orders under Wis. Stat. § 252.03. The opinion notes local government authority under Ch. 323 as an additional source of local powers but does not specifically address those powers.
In conclusion, it is the League’s opinion that municipalities’ broad emergency powers enable them to enact restrictions addressing the COVID-19 pandemic in the absence of local health department orders. 5/19/20
Following the Wisconsin Supreme Court’s decision invalidating DHS’s Safer at Home Order 28 can a municipality choose to keep municipal facilities such as playgrounds, parks, athletic fields, etc. closed?
Yes. The legislature has granted municipalities management and control over municipal property and power to act for the health, safety and welfare of the public. See Wis. Stat. §§ 61.34(1) and 62.11(5). In the absence of an express limitation on those powers, a municipality has authority to decide whether municipal property should be open or closed. 5/14/20
Now that the Supreme Court has overturned Emergency Order 28 Safer at Home, what is the status of Emergency Order 5 which prohibited gatherings of ten people or more?
With Safer at Home overturned, Emergency Order 5 has no effect. The language in Emergency Order 5 specified the order would remain in effect for the duration of the public health emergency declared in Governor Evers’ Executive Order #72, which expired on May 11, or until a superseding order was issued. Emergency Order 28 Safer at Home appears to be a superseding order; therefore, Emergency Order 5 presumably is no longer in effect. 5/14/20
Would a county health order control in a municipality without a local health department?
Yes. Wisconsin Stat. § 251.08 provides that the jurisdiction of a county health department applies throughout the county unless a municipality within the county has its own local health department. 5/14/20
Must a library close if there is a county or local health department order in place establishing restrictions similar to Safer at Home?
Yes, pursuant to Wis. Stat. § 251.08, the jurisdiction of the local health department extends to the entire area represented by the governing body of the county, city, village or town that established the local health department, except that the jurisdiction of a single or multiple county health department or of a city-county health department does not extend to cities, villages and towns that have local health departments. 5/14/20
In the absence of a county or local health department order, does the governing body have authority to close the library or does that authority fall to the library board?
In the absence of such an order, the statutes appear to give the library board the authority to determine whether the library should open or close. Wisconsin Stat. § 43.58(1) provides that the library board has “exclusive charge, control and custody of all lands, buildings, money or other property devised, bequeathed, given or granted to, or otherwise acquired or leased by, the municipality for library purposes.” 5/14/20
Health Dept & Health Officer Powers, Duties & Enforcement Actions
The Wisconsin Counties Association released a document on Aug. 14, 2020 entitled Guidance in Implementing Regulations Surrounding Communicable Disease: An Analysis of Local Health Department and Local Health Officer Powers, Duties, and Enforcement Actions. The document is the work of an ad hoc committee created by the Wisconsin Counties Association to provide counties and municipalities with local health departments under Wis. Stat. ch. 252 a substantive and procedural foundation for crafting or updating ordinances relating to communicable disease regulations. The committee’s scope was limited to regulating communicable disease under chapter 252. The committee did not delve into other sources of authority for enacting regulations related to Covid-19 (e.g., police power to regulate for the public health, safety and welfare under Wis. Stat. chapters 61 and 62, and emergency powers under chapter 323). As a result, the guidance will be primarily of interest to a minority of municipalities that retain health departments and health officers. However, municipalities wanting to enforce county health department regulations applying within the municipality may find the section on enforcement helpful.
Not surprisingly, committee members came to the table with varying viewpoints and interpretations of the law (e.g., the significance and relevance of the Wisconsin Supreme Court’s decision in Wisconsin Legislature v. Palm, which invalidated DHS Secretary-Designee Palm’s Emergency Order #28, and the Attorney General’s subsequent guidance regarding that decision). The committee worked to reconcile varying viewpoints and it is important to emphasize that, as the title indicates, the document is intended as guidance and not as a definitive statement on the law. The Guidance is not a model ordinance or a template that can be cut and pasted; it emphasizes the importance of working with the municipal attorney or county corporation counsel to create and implement regulations.
League Legal Counsel Claire Silverman and Eau Claire City Attorney Stephen Nick participated on behalf of the League.
Examples of Mask Policies
City of Green Bay A resolution providing for face coverings within the City of Green Bay (PDF)
Public Health - Madison & Dane County
- Per the order (PDF) , people five years of age and older must wear a face covering that covers their nose and mouth when in public, which includes in businesses, health care settings, waiting in line, and on public transportation. This order goes into effect on July 13, 2020 at 8:00am.
- Exceptions are made for certain activities such as eating at a restaurant, but during those activities, 6 feet distancing is required at all times. Some people are also exempted if they have a physical, mental, or developmental condition that prevents them from wearing a mask."
City of Milton Draft Policy for Employees/Elected Officials Purpose: This policy (PDF) outlines the work rule for City of Milton staff and elected officials to wear cloth face coverings when inside City of Milton facilities in public, shared, or common areas and when conducting business with the public.
City of Milwaukee "On July 13th, 2020, the Milwaukee Common Council adopted an ordinance requiring face coverings in public spaces, indoors and outdoors. The ordinance goes into effect July 16th and will be enforced throughout the duration of the Moving Milwaukee Forward health and safety order. The ordinance will remain in effect until the order is lifted." MKE Cares (PDF) News Release: Milwaukee Cares Mask Ordinance to Go into Effect July 16 City of Milwaukee MKE Cares Mask FAQ
Local Planning Documents
Racine City of Racine Ordinance (June 22, 2020) Standards to Reopen amid the COVID-19 Pandemic (The ability of Racine to enact and enforce this order has been challenged in Racine County circuit court by a local business.)
River Falls - Crushing COVID-19: A Guide to Recovery is available on the city’s website.
Wauwatosa - Tosa Restarts Temporary Regulatory Relief Program (PDF)
This is evolving. Please check directly with the local health authority for up-to-date information.
Local Emergency Orders/Guidance