Tavern owner Rick Breunig didn’t have a lot of time for a follow-up question from a reporter at 4 p.m. on May 14.
“I got a full bar, so make it quick,” Breunig shouted over the phone, the noise of the crowd nearly drowning him out.
Maybe Again tavern in Prairie du Sac reopened the day before, immediately following news that Gov. Tony Evers’ “Safer at Home” order had been ruled unlawful by the Wisconsin Supreme Court. Breunig, who owns the small bar along the Wisconsin River in Sauk County, supported the government order closing his business and others on March 26 to prevent the spread of COVID-19. But after weeks of being shuttered, he says “there’s got to be a limit.”
“Most of the bars here are open now,” says Breunig, speaking earlier in the day on May 14. “It wasn’t a hard decision for us. Two months was long enough. A lot of people were saying how the [shutdown] was infringing on their rights.”
Unlike neighboring Dane County, Sauk County has not issued a local public health order that replicates the mandatory provisions in Safer At Home. The response to COVID-19 is in the hands of local public health agencies now that the state’s Safer at Home order has been invalidated by the state’s high court.
The result is a patchwork of rules across the state. Around a dozen local governments — including Brown, Dane and Milwaukee counties and the city of Milwaukee — have issued local orders with nearly the exact same restrictions as the Safer at Home order.
Other local public health departments, including Sauk County’s, have only issued voluntary guidelines. On the Sauk County Health Department's website, the agency suggested its citizens maintain “six feet of distance between yourself and others” and not to “congregate in groups larger than 10 people without physical distance between groups” — not exactly what one imagines of the scene in a “full bar.”
Breunig says he’s made some changes since reopening, based on the Sauk County guidelines.
“We have set our tables apart. We cleaned the whole bar top to bottom while we were closed. We have hand sanitizer out on the bar. We have masks behind the bar if people want one. Other than that, I’m not sure what else I can do,” says Breunig. “We encourage people to social distance. But it’s guidance, not the law.”
But the law is still in full force just across the Wisconsin River in Dane County. A short jaunt from Maybe Again, across the Highway 12 bridge, Green Acres supper club is still prohibited from conducting in-person business. The manager, who did not want to give her name, says before the pandemic the restaurant did a strong bar business. When asked about other taverns opening within eyesight of Green Acres, she replied, “I’m not going to comment on other places.”
“We are following the Dane County order,” said the manager, who sounded frustrated that public health measures are no longer consistent statewide. “I feel like we are doing the right thing — for the community and our staff. I’m grateful the owners have decided to keep doing what we’re doing right now…. Takeout orders have been going great.”
A mashup of regulations among counties adds another variable to containing COVID-19. “Someone right now in Dane County can go to a neighboring county that has bars open, they come back home, and can get somebody here sick,” says Sarah Mattes, spokesperson for Public Health Madison & Dane County. “Before the Supreme Court ruling, they didn’t have that option.”
Mattes says her agency is “just doing what’s best to control the spread of the disease.” The Supreme Court, she adds, has “made that harder.”
Dane County Executive Joe Parisi says the inconsistent policies will have dire consequences: “Innocent people will die,” he told reporters May 13.
Wisconsin has so far avoided overwhelming its healthcare system with people sick from the coronavirus. But Evers worries that progress in containing the virus will now be eroded.
“Republican legislators convinced four members of the Supreme Court to throw the state into chaos,” the governor said during a press call shortly after the court’s ruling was announced.
“Hells bells. We've had how many months and there has been no plan from the Republicans…. There's no question among anybody that people are going to get sick. We presently lead the Midwest in having the fewest cases per capita,” said Evers. “All the things [were] looking good. And now we are in a position of having that turned around in one fell swoop.”
A 4-3 majority of conservative justices on the court ruled that Evers’ Department of Health Secretary-designee Andrea Palm had overstepped her authority by not going through the “rulemaking” progress with the Safer At Home order. Justice Rebecca Bradley made headlines for comments she made during oral arguments on the case when she compared the measures to limit the spread of COVID-19 to Japanese internment camps during World War II. Bradley, who is part of the court’s 5-2 conservative majority, was widely panned for citing the 1944 U.S. Supreme Court decision — Korematsu v. United States — upholding an executive order from President Franklin D. Roosevelt that led to incarcerating Americans of Japanese descent. In her concurrence with Chief Justice Patience Roggensack’s decision, she doubled down on the analogy.
“We mention cases like Korematsu in order to test the limits of government authority, to remind the state that urging courts to approve the exercise of extraordinary power during times of emergency may lead to extraordinary abuses of its citizens,” wrote Bradley. “These cases, among other similarly despicable examples, illustrate rather painfully why the judiciary cannot dispense with constitutional principles, even in response to a dire emergency.”
Justice Brian Hagedorn, also considered a conservative, sided with the two liberals on the court — Justices Ann Walsh Bradley and Rebecca Dallett. In his dissent, Hagedorn questioned whether the Republican-controlled Legislature had standing to challenge the Safer At Home order. He also strongly disagreed with the majority ruling that the emergency public health order was unlawful, writing that the decision “is not grounded in the law.”
“The rule of law, and therefore the true liberty of the people, is threatened no less by a tyrannical judiciary than by a tyrannical executive or legislature,” wrote Hagedorn. “In striking down [Safer at Home], this court has strayed from its charge and turned this case into something quite different than the case brought to us. To make matters worse, it has failed to provide almost any guidance for what the relevant laws mean, and how our state is to govern through this crisis moving forward.”
Howard Schweber, a political science professor and legal expert at UW-Madison, expected the court to strike down Safer At Home because state statutes give broad authority to the executive branch to fight communicable disease — but only for 60 days. After that, the Legislature needs to approve any emergency orders.
“Instead the court went with this administrative law route that established an extremely cumbersome rulemaking process that has to be satisfied for any future implementation of emergency orders,” says Schweber. “Under the Supreme Court's new theory, the governor can issue an order during an emergency, but any measures that are implemented under that order have to be reviewed by the Legislature — which of course, undermines why an emergency order needs to be issued in the first place. It’s a very strange argument.”
It could take weeks for the Department of Health Services and a handful of GOP lawmakers on the Joint Committee for Review of Administrative Rules to implement new statewide rules to address the COVID-19 outbreak. For weeks, Republicans lawmakers have called for a “regional approach” to fighting the pandemic. Assembly Speaker Robin Vos (R-Rochester) has signaled the Legislature might not need to take any action.
“We already know that local health departments have the ability to utilize their power, which is already there to deal with those situations if they feel it’s unsafe,” Vos told the Associated Press on May 14. “So we don’t necessarily need a statewide approach.”
Back in Prairie du Sac, Breunig questioned whether local public health officials have the authority to close businesses and restrict travel.
“My own personal opinion is if the state Supreme Court is overruling the Wisconsin health secretary, how can the Sauk County health secretary say otherwise?”
Still, the tavern owner says he “can see the other side, too.” His mother and father are both elderly and have existing health conditions that make them more vulnerable to serious complications from COVID-19.
“I won’t be visiting my mom or dad anytime soon,” says Breunig. “At the end of the day, it's just a bar. If people don’t think it's safe coming here, they should stay home.”
