Officials Face a Choice in Fighting COVID: Face Lawsuits, or Let the Virus Spread

Only a few health departments in Wisconsin still have enforceable health orders as the virus has spread wildly and killed relentlessly.

The politicization of the pandemic in Wisconsin can be seen in one email. 

On Oct. 6, faced with spiking COVID-19 cases throughout the entire state, Dane County Executive Joe Parisi, who oversees one of the few places in Wisconsin that still has enforceable safety measures, extended an invitation to elected officials in 13 nearby counties to adopt regional coronavirus restrictions.

The next day, Sen. Steve Nass (R-Whitewater) sent an email to those same officials “strongly urging” them not to “take the dictatorial style employed by Dane County.”

“Forcing your residents to resist local government edicts or launch legal challenges will only make the situation worse in the long term,” Nass wrote in the email, of which UpNorthNews received a copy.

After Nass sent that email, Parisi said his neighboring elected officials haven’t been as receptive to regional cooperation.

“We’re told to act locally and act regionally. I reach out in good faith to our partners to try to cooperate and work regionally, and Sen. Nass sends a letter to them that certainly had some very aggressive overtones, in essence, warning them not to work with me,” Parisi said during a recent interview with UpNorthNews. “It’s really mind-boggling when you look at the core of what we’re trying to do. We’re trying to protect people.”

Reached Wednesday for comment, Mike Michaelson, Nass’ chief of staff, said the state senator’s opinion hasn’t changed from his October email.

“His email from earlier does still stand. He recommends that those folks do not listen to Dane County, which by any stretch of the imagination has been extreme in their response to COVID-19,” Michaelson said.

But Dane County’s response has led residents there to see a significantly lower number of COVID-19 cases and deaths per capita compared to all of the counties in Nass’ district, according to data tracked by the state Department of Health Services (DHS).

Such opposition illustrates the difficult choice health directors and elected officials have been forced to make during the pandemic: let the virus spread uninhibited, or implement safety measures and almost certainly face costly lawsuits that threaten to further erode the ability to fight pandemics. 

A cottage industry of suing over health orders has seemingly cropped up during the coronavirus pandemic after the conservative-led state Supreme Court in May struck down Gov. Tony Evers’ statewide Safer at Home order. 

“The lawsuits in general are extremely frustrating,” Parisi said. “The lawsuits at a state level or local level, these are a big part of the reason our state is in the trouble it’s in right now with the pandemic.”

At the time of the Supreme Court decision, the state was averaging fewer than 500 new coronavirus cases per day. The pandemic took off from there, finally reaching a peak on Nov. 18 when the DHS reported 7,989 new cases. As of Tuesday, there were 418,446 confirmed COVID-19 cases and 3,806 deaths in Wisconsin, more than 25 times the number of cases and seven times the number of deaths as there were at the time of the court decision.

While more than 30 municipal and county health officials throughout Wisconsin issued their own orders after the Supreme Court decision, many quickly rescinded the restrictions after the Wisconsin Counties Association said it was “unclear” that local health orders could survive legal challenges. Attorney General Josh Kaul subsequently issued an opinion reaffirming local health departments’ broad legal authority to control pandemics, but the damage had been done.

If they weren’t rescinded, most of the few health orders that remained in place were allowed to expire days or weeks later. 

Many departments, such as Door County’s, have resorted to issuing toothless advisories and recommendations. In northwestern Wisconsin, Hudson’s Common Council on Tuesday unanimously approved a curfew to close bars and restaurants at 10 p.m. 

Yet in issuing the curfew, city officials have only cited ill-behaved Minnesotans bringing violent crime and general rowdiness across the border to eat and drink with fewer restrictions than on the other side of the St. Croix River. 

Kelli Engen, St. Croix County Health Department director, said she hopes the curfew will help slow the spread of COVID-19. The county has experienced a virus surge in recent weeks that left hospitals at or near capacity. 

“While this decision was tough, as we know businesses will be impacted, the council seemed to have done their homework and talked to area businesses prior to the meeting,” Engen said.

Now, the cities of Milwaukee and Racine, and Dane County, appear to be the only places in Wisconsin with any semblance of an enforceable health order. While Milwaukee has so far gone without a major lawsuit, Dane County currently faces two suits at the state Supreme Court while Racine faces one.

Local control has been the mantra of many conservatives throughout the pandemic, but it’s clear the standing threats of lawsuits or interference from Republican lawmakers have all but disintegrated what was left of the patchwork of local rules throughout the state. The Republican-led Wisconsin Legislature, which could work with Evers to pass a statewide safety and recovery plan, hasn’t met for 238 days. Shortly after Safer at Home was struck down and Republicans demanded a “seat at the table,” Evers forwarded a plan to the Senate Committee on Administrative rules. Nass, who chairs the committee, nixed it.

Since the Legislature last passed a bill, Wisconsin has added 414,725 new coronavirus infections and 3,624 deaths. At the same time, there have been next to no local restrictions enacted.

“It is disappointing when the other health departments around the state have basically just folded,” said Shannon Powell, Racine’s communications director. “They’ve given up and said, ‘The best thing we can do is give some guidance, but we’re not willing to go far enough to actually say we’re going to issue an order and hold people to that order.’”

Health directors in Racine, Milwaukee, and Dane County have stood in defiance to the lawsuits. All three tightened their local health restrictions within the last month. 

As COVID trends worsened, acting Milwaukee Health Commissioner Marlaina Jackson—who took charge after former Health Commissioner Jeanette Kowalik resigned over her treatment during the pandemic—limited bars and restaurants to 25% capacity on Dec. 2 if they do not have city-approved safety plans, and 50% if their plans are approved. Previous editions of the order allowed 100% capacity with an approved safety plan. School sports are also now prohibited without an approved safety plan.

“All changes in the public health order in Milwaukee are the result of a careful review of the available data, application of public health science, and analysis of situations where COVID-19 can be transmitted,” Jackson said in a statement. Her office said she was unavailable for an interview.

Racine Health Director Dottie-Kay Bowersox on Nov. 23 tightened restrictions on bars, restaurants, retail establishments, and long term care facilities. Bowersox faced a lawsuit from a local gym owner in June and July that saw her restrictions paused and reinstated multiple times as the lawsuit developed. 

The Wisconsin Institute for Law and Liberty, a prolific conservative law firm, currently is suing Bowersox at the state Supreme Court over her order for schools within her jurisdiction to hold virtual classes.

“It feels like, at this point, at any moment someone’s gonna type up [a lawsuit],” Bowersox said.

WILL is also suing Dane County over its currently suspended order to close school buildings. The Supreme Court heard arguments Tuesday morning.

Dane County Health Director Janel Heinrich further tightened restrictions on Nov. 20 by prohibiting indoor gatherings for purposes such as exercise classes, meetings, and movies at theaters. Three days later, a local gym sued the health department and claimed it would lose up to $40,000 due to the order. The Supreme Court accepted the case.

“We’re doing our job,” Parisi said. “We’re trying to protect people, and the other folks’ goal seems to be to stop us from being able to do our job. It’s not to stop us and put forward an alternative plan or solution, it’s just to stand in front of efforts to protect people in our communities.”

Julian Emerson contributed to this story.