Federal suit over local Wisconsin COVID-19 orders dismissed

A federal judge dismissed a lawsuit filed by two dozen Wisconsin residents challenging a variety of local stay-at-home orders enacted to curb the spread of the coronavirus.

U.S. District Judge William Griesbach on Monday dismissed the challenge, filed in May, saying those bringing it did not properly join all of the defendants into one lawsuit. That mistake requires that the lawsuit be dismissed, Griesbach said in his order. Those bringing it can file it again if they correct the errors, the judge said.

Joseph Voiland, the attorney for those who brought the lawsuit, said he was reviewing whether to file an amended lawsuit or appeal.

The lawsuit was brought against Gov. Tony Evers, Wisconsin Department of Health and Human Services Secretary Andrea Palm and county and city officials from 14 independent government entities. It alleged that the state and local officials violated the constitutional rights of Wisconsin citizens by imposing mandatory public health orders or taking other steps in response to the COVID-19 pandemic.

The lawsuit sought to void all of the local orders that were enacted after the Wisconsin Supreme Court in May tossed out Evers’ statewide "safer at home" order.

Local public health and law enforcement officials sued came from the cities of Milwaukee, Racine, Wisconsin Dells, Oshkosh, Grand Chute, Appleton and Madison, as well as Dane, Rock, Green, Kenosha, Door, Outagamie and Winnebago counties.

Wisconsin Attorney General Josh Kaul has said the local orders, many of which have already been rescinded, were legal. He praised the ruling.

"I’m happy that this challenge to critical rules to protect public health was dismissed," Kaul said in a statement. "To protect public health, our economy and our educational system, we must work together to reduce the spread of the coronavirus."

Those who filed the lawsuit included the organizer of a "reopen Wisconsin" protest at the state Capitol, a restaurant owner, a pastor and a candidate for the state Assembly. They alleged six constitutional violations, including the right to free speech, religion and assembly.

The defendants said that the lawsuit failed to allege any coordinated action between all the local officials involved. Those bringing the lawsuit countered that the officials acted together to violate their federal constitutional rights.

The judge disagreed.

"Each of the government entities are independent of each other, and the fact that various governmental officials consulted with each other before they issued local orders in response to the pandemic does not transform their independent actions into a single transaction or occurrence," Griesbach wrote.

Also, each of those who brought the lawsuit is subject to different orders implemented in different parts of the state, the judge said. The claims raised are "largely separate and distinct" and have been improperly joined together into one lawsuit, he said.

Dismissal of the lawsuit comes as communities struggle to reduce spread of the virus as the numbers are spiking across Wisconsin. On Tuesday, the state Department of Health Services reported a new record high in daily confirmed cases at 1,117. That breaks the previous record of 978 set on Saturday.

There are now more than 44,000 positive cases statewide and 859 deaths. That number was up by 13 from Monday. The percentage of tests that came back positive on Tuesday was 7.7%, down from around 10% each of the past two days.

The true number of cases is likely far higher because many people have not been tested, and studies suggest people can be infected and not feel sick.