Top GOP lawmakers now want to leave virus plan in the hands of local officials

Molly Beck Patrick Marley
Milwaukee Journal Sentinel

MADISON - After successfully suing Democratic Gov. Tony Evers to force him to work with the Legislature to craft a plan to control the spread of the coronavirus, key Republican lawmakers now suggest they don't need any new guidelines for the time being. 

As Wisconsinites try to understand what daily life is supposed to look like now that the state Supreme Court has eliminated the Evers administration's stay-at-home order, Assembly Speaker Robin Vos said local officials should be able to largely handle the situation on their own. 

"As a Republican, I believe in local control," he said Thursday.

The Rochester Republican changed course this week after he and Senate Majority Leader Scott Fitzgerald repeatedly called for Evers and the Legislature to develop a statewide plan together. 

GOP Rep. Joan Ballweg of Markesan, the co-chairwoman of the committee that now has veto power over any new coronavirus-related rules written by Evers, told the Milwaukee Journal Sentinel she doesn’t believe state rules are needed for the immediate situation. 

“Do we need statewide rules for the run-of-the-mill opening of restaurants or small retailers? I don’t think so,” Ballweg said. “It’s been shown what’s been deemed essential businesses before, the nonessential businesses can be doing the same things that they were and work in a safe manner.”

Instead of immediately putting into effect any rules, she said officials should work on ones that could be implemented if there were a surge in coronavirus cases. She didn't say what those rules should look like.

It's unclear whether Fitzgerald supports the approach of Assembly Republicans. In a tweet, Fitzgerald said he and Evers had a "good call" this morning but did not respond to repeated questions about whether he agreed with Vos on leaving it to cities and counties to develop their own plans. 

In a video news briefing with reporters, Evers expressed frustration with the GOP sentiment after he talked to Fitzgerald and Vos earlier Thursday.

"I thought both leaders felt very comfortable with the idea (of a patchwork) and unconcerned about what I believe is the massive confusion that will exist without a statewide approach," Evers said. "Apparently, they believe different rules are OK. I can't imagine another state that is in this predicament." 

Local orders in Milwaukee, elsewhere

Officials in at least 12 cities and counties have issued their own orders placing restrictions on businesses and gatherings, each with varying expiration dates.

In Milwaukee, bars and restaurants are still closed, and gatherings of more than nine people are still prohibited, but businesses like hair salons, barbershops, nail salons and day spas can again open. 

The new order, which went into effect Thursday afternoon, mirrors the order set by 18 municipalities in suburban Milwaukee County and their 10 public health officials. Unlike Milwaukee, those municipalities put an end date on their orders — May 21.

The rest of the state doesn't have any restrictions, leaving a patchwork of rules that GOP leaders hadn't previously called for but are now embracing. 

Vos said he believes local authorities can largely contain the virus in their communities with their own rules. He said he was open to adopting state rules if Evers could persuade him they are needed to fill gaps in local policies.

"How worried am I about not having the state (set rules) when the vast majority of this is done by the locals? I guess only time will tell, but I have faith in local governments to be able to do this," he said.

Department of Health Services officials submitted the outline of the new rules they would seek to implement in place of the now-defunct stay-at-home order.

The broad strokes largely mirror the policies contained in the order struck down by the Supreme Court, including "a phased approach to reopening Wisconsin’s economy and society, with each phase being incrementally less restrictive on businesses and individuals while protecting the public from COVID-19."

That proposal already puts Evers at odds with Republican lawmakers as Vos and Ballweg said business owners would be committed to opening safely.

"I guess in the end I trust people to be able to make wise decisions for themselves and I trust businesses," Vos said. "I think the vast, vast majority of small businesses and their customers are going to be wise and do things in a way that are gradual."

The state restrictions were lifted after the spread of coronavirus has slowed in recent weeks. There has been a recent uptick in the number of cases but a decrease in the percentage of positive cases. 

As of Thursday, 11,275 people had been infected by the virus and 434 people have died.

Brown County leader: 'The state has failed us'

Assembly Majority Leader Jim Steineke, R-Kaukauna, in a video statement urged his constituents not to expect daily life to return to normal overnight and to check with local health officials on appropriate guidance to reopen businesses.

But some local officials are frustrated there are no longer state rules to use to navigate the ebbs and flows of the virus outbreak. In Brown County, where cases of the virus have skyrocketed in recent weeks, the county's top leader said the "state failed us."

“We were hoping for state guidance in terms of how 72 counties were to operate going into the future." said Brown County Executive Troy Streckenbach, a Republican. "Unfortunately, we did not receive that guidance.”

Members of the state's federal delegation also sought guidance for the state. U.S. Sen. Ron Johnson, a Republican from Oshkosh, urged GOP leaders and Evers to set guidelines quickly.

"I have always believed the vast majority of our economy should be deemed essential and continue to operate with appropriate safety measures," Johnson tweeted. "I urge the state legislature and @GovEvers to recognize this fact and work together to implement a set of guidelines that lets people start to go back to work and resume their lives in as safe a manner as possible.

And U.S. Rep. Ron Kind, a Democrat from La Crosse, said “there is a lot of confusion surrounding this ruling” among his constituents with little guidance about what comes next, or what the new rules and expectations are. 

“If this suddenly becomes a free for all, a wild, wild west situation in Wisconsin, we’re going to have huge outbreaks, which will entail having to close things down again,” said Kind, who represents a largely rural district in southwestern Wisconsin.

Kind called on the state’s political leaders to “come together quickly, stay united and give people the certainty they need right now.”

But there were already rumblings Thursday afternoon of another impending clash between those leaders — this time over Health Services Secretary Andrea Palm, who has led the state's response to the outbreak. 

GOP state Sen. Tom Tiffany, who was just elected to a seat in Congress representing Wisconsin's 7th District, said Palm should leave her position immediately.

"Ms. Palm came here as Gov. Evers' hired gun, and she will leave with Wisconsin's corpse if she continues," he said. Tiffany joins a handful of other Republican senators who have called for the removal of Palm, whose cabinet appointment has not yet been confirmed by the Senate. 

Evers interrupted his own news briefing Thursday to respond to Tiffany. 

"Senator Tiffany, please. You just won an election — just relax," Evers said. "This is an insane statement."

Trump praises court ruling

Meanwhile, President Donald Trump praised the high court's ruling, saying "the people want to get on with their lives."

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Evers' scope statement for new coronavirus rules will be formally published Monday, and under state law the Evers administration will be barred from doing any work on the rules for the next 10 days. After that, state officials can begin writing the rules.

Once they’re completed, the Republican-controlled Joint Committee for Review of Administrative Rules can block them in whole or in part. Any changes to the rules would require the lengthy process to start over.

No state rules will be in place in the meantime. And if the two sides can't agree on rules, they never will be.

Fate of local orders uncertain

There are still outstanding questions about what to expect in the following weeks after the Supreme Court sided with Republicans in their lawsuit to strike down the governor's order, including whether the local orders could be challenged. 

In an emailed newsletter, the Wisconsin Counties Association said the local health orders placing restrictions on businesses and gatherings are made under the same set of state laws the governor's now-defunct order used as its basis. 

"As a result, it is unclear whether a local health order would, in the Court’s view, suffer from the same deficiencies that caused the Court to invalidate the Safer at Home Order," the group told county officials. 

Ryan Nilsestuen, chief legal counsel to Evers, argued the ruling does not affect local health officials' power.

RELATED:Are Wisconsin schools, bars and hair salons open? What the Supreme Court ruling to end Evers' stay-at-home order means.

Jeffrey Mandell, a Madison attorney who has represented Evers on some matters, said he believes local officials still possess broad powers to issue health orders that mirror the one knocked down by the court.

The court found that the Evers administration must follow a complex rulemaking process to put his plans in place. But local officials aren't required to use that same process, and Mandell said that gives them the ability to issue their own orders, he said. 

While lawmakers can quickly block state rules, they don't have an easy way to block local orders.

But the Supreme Court’s decision also found the state’s order was unlawful because it was too sweeping, said Rick Esenberg, president of the conservative Wisconsin Institute for Law & Liberty. That could spell trouble for local orders that are similarly broad, he said.

Exactly how far local officials can go remains unclear, both Mandell and Esenberg said.

“I don’t think anything but litigation could answer that question,” Esenberg said.

Democratic Attorney General Josh Kaul said he expected legal challenges to stay-at-home orders issued by local officials. He called Wednesday's decision a "historically bad court ruling that is going to have severe negative consequences for Wisconsinites."

Kaul urged Republican lawmakers to offer their own plan to fight the pandemic after they successfully sidelined Evers' proposal. He spoke during a video news conference hosted by Protect Our Care Wisconsin, a group that promotes the Affordable Care Act.

"We’ve actually seen very little from our Legislature since the coronavirus pandemic has occurred, but it’s time for them to step up because we need a plan as we’re in the middle of an epidemic," Kaul said. "We can’t just leave this to chance and hope that the best happens. We’ve seen that approach at the federal level and it’s been disastrous."

Craig Gilbert and Mary Spicuzza of the Journal Sentinel staff and Haley BeMiller of the Green Bay Press-Gazette contributed to this report.

Contact Molly Beck at molly.beck@jrn.com. Follow her on Twitter at @MollyBeck.