Emergency Orders-Plans - Local
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
This is evolving. Please check directly with the local health authority for up-to-date information.
Local Emergency Orders/Guidance
Local Planning Documents
River Falls - Crushing COVID-19: A Guide to Recovery (PDF)
Wauwatosa - Tosa Restarts Temporary Regulatory Relief Program (PDF)
Sterling Heights, MI - Plan for Re-Opening of City Facilities and Resumption of Non-Essential Services (PDF) Comprehensive 73 pages with signage. (Disclaimer - Please note, this document is a sample and has not been reviewed for legal sufficiency. Michigan law may differ and we encourage members to consult with their municipal attorney regarding questions of law.)
DHSWI Interim Guidance on Large Gatherings
Interim guidance has been posted to the DHS COVID-19 Avoid Illness page regarding large gatherings under "Can I hold or should I go to a large gathering?" This includes any event in which large gatherings of people are in sustained, close contact, including, but not limited to, fairs, festivals, parades, and conferences.
At this time, DHS does not advise large gatherings, and there is no projected time frame available as to when this advisory would change. 5/19/20
Wisconsin Park and Recreation Association Monitoring Pool Closures
WPRA has created an online document to monitor pool closures across the state. Pool closures are based on many factors including government restrictions, financial projections, public perception and above all the health and safety of Wisconsin communities.
International Facility Managers Association resources to help guide facility professionals through the COVID-19 crisis including webinars, downloads, guides and other resources created by the IFMA community and its partners.
BACK TO WORK: SPACE PLANNING IN A COVID-19 WORLD
As states begin to transition from shelter in place to open for business, we’re about to embark on yet another COVID-19 learning curve: How will we accommodate health and safety guidelines in our facilities and office buildings? What will the "new normal" look like in terms of space planning and facility management? Read the list of top 7 concerns by Cartegraph here...