Judge Threatens Racine for Moving Ahead with New COVID Rules as Cases Surge

Council voted to pass a nearly identical version of rules that had been suspended.

The same Racine County judge who suspended the City of Racine’s stay-home order meant to guard against the spread of coronavirus is now threatening to hold the city in contempt of court after the Common Council passed a nearly identical set of restrictions.

“The City of Racine has engaged in a direct attack on this Court’s order,” wrote Judge Jon Frederickson in his decision suspending the second set of rules.

Racine’s original order was thrown out last week, with the possibility of being reinstated after a court challenge is resolved. A local gym owner sued the city in an effort to lift the restrictions, saying he lost business due to the lockdown. Frederickson ruled the order couldn’t be enforced while the case was being argued. 

When Gov. Tony Evers’ statewide stay-home order was struck down in May, the state Supreme Court and the Legislature’s Republican leaders left it up to local governments and health officials to craft local solutions to the pandemic. Racine Mayor Cory Mason said that Frederickson’s decision flies in the face of that and called it a case of judicial overreach.

“This is a bit like telling a city that they don’t have the authority to send firetrucks to a burning fire,” said Mayor Cory Mason of the decision in an interview with UpNorthNews. “It simply does not make sense.”

Racine’s aldermen voted 8-5 on Monday to instate what amounted to the same order in a last-ditch attempt at guarding against the virus’ spread in the city and county, which is neck-and-neck with Milwaukee for the highest per-capita rate of infection in the state. 

There were 1,454 cases within Racine, population about 75,000, as of Friday, and 2,144 cases in the county, population about 200,000, according to state and local data.

Frederickson called the city’s new ordinance “Strike One,” going on to say that any further action would result in the city being held in contempt of court.

“There are no strikes two, or three, in this Court,” Frederickson wrote.

The city turned to an ordinance to impose restrictions because Frederickson had initially stopped enforcement of a generally applied order from the city’s top health official. Common Council President John Tate, II, also said the ruling was a judicial overreach.

“‘A community has the right to protect itself against an epidemic of disease which threatens the safety of its members,” Tate said in a statement. “This was true of smallpox in 1905, as is true of COVID-19. Clearly the Common Council has the authority to pass ordinances to protect the public health and safety of our residents. It is disturbing that at every level of government there has either been a failure to act, or direct opposition to reasonable and necessary precautions, seemingly driven by political or economic motivations instead of public health.”

The ruling once again leaves Racine County without any form of enforceable safeguards against the virus’ spread. After the Wisconsin Supreme Court struck down Evers’ statewide order, Racine was one of a handful of communities to put a local order in place. The Central Racine County Health Department, which holds jurisdiction over the rest of the county, only ever issued recommendations.

“This would all be going a lot better if we had a statewide or national standard in place to stop the spread of coronavirus,” Mason said. “We are going to be dealing with this for a much longer period of time because of the failures coming out of Washington to set a national standard early and because of the political infighting in Madison.”

Racine officials are due back in court on Tuesday for oral arguments. Mason said the city will appeal the decision if Frederickson ultimately rules against Racine.

“It’d be unacceptable for any city to accept the argument from a judge that the city doesn’t have the authority to pass ordinances that protect the health and safety of its residences,” Mason said. “In fact, there are few responsibilities more serious that a city has.”

As local governments struggle to protect their citizens, the country is experiencing a massive surge in confirmed coronavirus cases. Wisconsin is no exception, with the state adding 520 cases on Friday, the highest count since May 30.

Thirty counties are experiencing high levels of coronavirus activity, according to the Department of Health Services. The DHS also reported nine new deaths on Friday, bringing the total to 766.

“Regardless of what a court may have said, whether it’s here in Wisconsin or more than 20 states across the country, what we’re finding is that when people open up too quickly, they see a spike in coronavirus cases,” Mason said.

Dane County, which is experiencing a massive spike after having relatively slow case growth, decided on Friday to impose new restrictions, rather than move to the next phase of reopening as was previously planned.