Conservative justices who control the Wisconsin Supreme Court raised doubts Tuesday about whether Gov. Tony Evers’ stay-at-home order is legal, asserting that the Legislature never intended to give the executive branch so much power.
Justice Rebecca Bradley suggested during oral arguments over the order that state Department of Health Services Secretary Andrea Palm’s decision to extend the mandate without legislative input amounts to tyranny. She also questioned whether Palm might next herd people into social distancing camps akin to World War II Japanese internment camps.
“There is a constitutional problem with the Legislature giving away this much power to an unelected Cabinet secretary,” Bradley said. “The people never consented to a single individual having that much power.”
Evers issued an order in March requiring people to stay in their homes and avoid nonessential travel to curb the spread of the coronavirus. The order also required schools and nonessential businesses to close and banned public gatherings. Palm, a member of Evers’ Cabinet, unilaterally extended the order until May 26 at the governor’s direction.
Republican legislators filed a lawsuit directly with the Supreme Court arguing Palm overstepped her authority. They contend the order is really an administrative rule and as such is subject to legislative approval. They’ve asked the court to issue an injunction blocking the rule but stay imposition for six days to give the health department time to properly promulgate an emergency administrative rule.
The administration’s attorneys have countered that state law clearly gives the health department broad authority to combat communicable diseases. They face an uphill fight, though. Conservatives hold a 5-2 majority on the court.
The court conducted oral arguments via video conference Tuesday. The Republican legislators’ attorney, Ryan Walsh, called the stay-at-home order the most sweeping edict in state history.
“The people have no means to oversee this exercise of power that derives from them in the first place,” he said.
The arguments grew testy as the conservative justices seemed to paint the order as an Evers’ power grab.
“People can go to prison for leaving their homes unless it’s OK with the DHS secretary,” Bradley said during an exchange with DHS’ attorney, Assistant Attorney General Colin Roth. “Under your interpretation of the statutes, she can do whatever she wants and can order people to go to jail if they don’t comply. The secretary could step in and do this every flu season.”
Justice Dan Kelly said Palm can’t criminalize people’s behavior; only the Legislature can create new crimes, he said. Justice Annette Ziegler suggested the order conflicts with local health authorities’ ability to fight the virus.
Roth argued that lawmakers in the past granted the health department broad authority to fight diseases because they understood the state might have to move quickly. The secretary wouldn’t impose such strict limitations during every flu season because there’s no support from the medical community for such drastic steps, he said.
Blocking the stay-at-home order now would be “devastating and extraordinarily unwise,” Roth said.
“The disease will spread like wildfire with no weapon to fight it,” he said. “People will die if this order is enjoined with nothing to replace it.”
Ziegler said that even if the justices agree the pandemic is a “pretty bad scenario” and the order makes sense they must apply the constitution and the law.
It’s unclear when the court might rule.
Also on Tuesday, the Wisconsin Department of Health Services announced new metrics hospitals must meet in order to enter the first phase of Evers’ reopening plan. Ninety-five percent of hospitals must affirm they can treat all patients without crisis care, such as inadequate staffing, and 95% would also have to arrange for testing for all symptomatic clinical staff treating patients.
Another previously announced criteria for entering the first phase of the reopening plan was a downward percentage of positive coronavirus tests over 14 days. The percentage of positive cases decreased Tuesday for the second straight day but has been relatively flat the past 14 days.
As of Tuesday, 353 people had died from the virus in Wisconsin and there were more than 8,500 positive cases.
The state Department of Transportation also announced that 16- and 17-year-olds will not have to take a road test in order to receive their driver’s license under a new pilot program to address a backlog and limit in-person visits to service centers. Also, drivers age 64 and under will be given the option to renew their driver’s license online. The changes take effect Monday and are expected to remain in place for the remainder of the year.
The Gazette will end its Saturday and Sunday print editions, trimming print publication to five days a week as economic pressures on the news industry continue to mount amid the COVID-19 crisis.
The Gazette has delivered seven editions a week for 32 years. The change goes into effect June 1.
The decision comes as the paper faces a falloff in advertising and subscriber revenue that’s worsened during the COVID-19 pandemic, but it’s a measure the newspaper’s ownership had been discussing “for some time,” said Mary Jo Villa, Gazette publisher and Adams Publishing Group regional president.
“I absolutely believe it is the appropriate and necessary step to ensure we remain viable and have the ability to publish quality local journalism for many years to come,” Villa said in a statement. “The COVID crisis further put into perspective how important it is that we size our organization in a manner that ensures we can continue to provide the quality of journalism our communities deserve.”
The Gazette will continue to deliver news and advertising on GazetteXtra.com, the paper’s website, seven days a week, Villa said.
The elimination of two print editions a week will result in a total of six employees being laid off—some in the newsroom and some in the circulation and distribution divisions. The layoffs are effective at the end of May.
As the newspaper industry grapples with changing realities in business, one common response is to decrease the frequency of print products or end publication on certain days of the week, Villa said.
In an interview, Villa said The Gazette’s weekend papers have tended to be the most costly to produce given typical staffing at the printing plant in Janesville, which Adams Publishing also owns and manages.
The decision ends a seven-day-a-week print schedule established in 1988 to capitalize on advertiser demand and growth in preprinted advertising inserts. During most of The Gazette’s 175 years of publication, the paper printed five days a week.
In the last few years, the demise of local advertisers, including Shopko, Sears, Boston Store, JCPenney, Pick ’n Save and Maurer’s Market, among others, has hurt Gazette revenue, Villa said.
The COVID-19 crisis brought on a worsening falloff in advertising revenue, in part because many businesses have temporarily shuttered during the pandemic. In response to losses in ad revenue and the fallout of the novel coronavirus crisis, Adams Publishing in late March instituted a reduction in employee work hours at The Gazette and its other publications.
Villa said the Friday paper will become a “weekend” edition.
“We are not eliminating any content,” Villa said. “Most of the Sunday content will be in Friday’s edition, which will become a weekend edition. I believe each edition Monday through Friday will be improved, particularly as we recover from the COVID crisis and things such as sports and community events return.”
The Gazette will continue to deliver around-the-clock coverage of breaking news and sports every day, including weekends, via GazetteXtra.com.
Villa said The Gazette plans to launch an emailed newsletter to deliver readers the latest news.
The same assortment of pre-printed retail shopping fliers typically inserted in Sunday’s paper will be distributed in the Wednesday and Friday print editions. Villa said the Friday edition will include a bonus volume of games and comics.
Under the shift, subscription prices for The Gazette won’t change because Saturday and Sunday content previously printed both online and in print will continue to be available to subscribers online.
The Friday weekend edition will be delivered the same as other weekday papers, and the newsstand price for the Friday edition will be $2.50. The Sunday paper, which will cease at the end of this month, now costs $4 at newsstands. Monday through Thursday editions will sell for $1.50, which is the current newsstand price for weekday editions.
Gazette circulation surveys show at least 70% of the paper’s readers receive The Gazette’s content through online and multimedia channels.
Villa said she expects some backlash from readers who prefer to read news in print or who can’t or won’t read the paper via an electronic device.
“There is a slice of our readership that don’t have computers, they don’t have tablets, they don’t have smartphones. And I anticipate those individuals will be very disappointed,” Villa said. “But to perpetuate delivery seven days (a week) for what’s probably 20% of our customer base at the peril of the other 75% to 80% isn’t a good business strategy in my opinion.”
The Gazette is among several area newspapers owned and operated by Adams Publishing Group, a family-owned company headquartered in Minnesota. Adams acquired The Gazette and the Janesville printing facility in June 2019 in a sale by the Bliss family, who had operated The Gazette since the 1880s.
Adams media holdings in southern and southcentral Wisconsin include the Beloit Daily News, the Daily Jefferson County Union in Fort Atkinson and the Watertown Daily Times.
The National Guard on Thursday and Friday will help with COVID-19 testing at the Birds Eye food processing plant in Darien, a Walworth County health official said this week.
Although Birds Eye spokesman Daniel Hare said last week that plant officials had planned to open Sunday, he said in an email Monday that, “We are finalizing plans and intend to resume operations later this week.”
Carlo Nevicosi, deputy director for the county’s health department, said the emergency operations center asked for assistance from the National Guard in setting up on-site testing at the Darien facility.
He said the National Guard will test employees, family members and household members.
“Birdseye has worked closely with our Public Health Department, and we agree that this is the best way to get them safely reopened,” he said in an email Monday.
Capt. Joe Trovato, spokesman for the Wisconsin National Guard, said a team of 20 to 30 soldiers expects to collect 1,400 swab samples Thursday and Friday. The Guard has had 11 such teams collecting samples at sites throughout Wisconsin in support of health departments, he said.
Individuals tested can call a hotline to get their test results, Trovato said.
Overall, Nevicosi said earlier Monday, the three facilities in Walworth County publicly known to have COVID-19 outbreaks have been working well with the county’s health department to address those outbreaks.
Other than the three outbreaks that have been reported—Geneva Lake Manor in Lake Geneva, its sister facility Holton Manor in Elkhorn and Birds Eye—he said the county is aware of no other outbreaks as the county used to define them.
Nevicosi said the word “outbreak” might be slightly misleading to the public because the county received a new definition: one or more positive cases in a congregate living or high-consequence setting or two or more cases in other settings, including businesses.
Previously, the county had been identifying them as three or more cases involving residents or staff from the same unit with illness onsets within 72 hours of one another.
A previously unnamed Walworth County facility that has a COVID-19 outbreak is Holton Manor in Elkhorn and not the Birds Eye food processing plant in Darien, whose outbreak came as a “surprise” to the county.
Nevicosi said Walworth County has not had to issue any other public health orders since the one it gave to Geneva Lake Manor on April 17.
The company that oversees Geneva Lake Manor and Holton Manor took issue with the order, saying in a statement shared April 20 that its facilities were already taking the “exhaustive steps” ordered by the county.
But Nevicosi said Monday the county disagreed, adding that county officials took the big step to issue the order because “there was a threshold that was crossed where we were worried about the community’s safety with the practices that they had in place.”
He said he understood why the company would be upset. But perhaps, he said, there was a disconnect between what has happening day-to-day in Lake Geneva and what the corporate offices knew.
“Maybe that was a part of it,” he said. “On the ground, we didn’t see it the same way.”
Nevicosi said the congregate-care facilities in Elkhorn and Lake Geneva have since been good partners with the county and now are taking proper care of their staffs and residents.
He has said the outbreak at Holton Manor was “far more controlled” than the ones at Geneva Lake Manor and Birds Eye.
Meanwhile, the county on Tuesday reported an increase in COVID-19 cases to 235, which reflects data as of Monday, up from 180 reported Friday.
The county reported six patients were hospitalized with the disease, but Nevicosi said it can take time for the county to learn of discharges from the hospital.
The county reported no changes to the eight deaths it has already accounted for, while 59 patients have recovered from the disease.
Nevicosi on Monday declined to say if any of the deaths have occurred at the facilities with outbreaks, saying with such a small number of deaths so far it would be easy to identify them.
There are also 162 people isolating in their homes.
During an interview Monday morning, Nevicosi said the county’s hospitals have not reached any capacity crisis.
The county health department has become much busier with contact tracing, however. He said the facilities in Elkhorn and Lake Geneva are much smaller than Birds Eye, which employs about 800 workers.
After news of the outbreak in Darien, he said more and more tests came in. With that came more contact tracing.
Contact tracing is how the county identifies facilities with outbreaks because investigators ask about employment, Nevicosi said.
They might not know about a facility’s outbreak if workers live outside the county, which is what originally happened in the Birds Eye outbreak. A lot of testing was done in Illinois and not immediately reported to Walworth County, he said.
Nevicosi called Birds Eye a “pretty important piece of the food supply chain.”
Although he previously said the county first learned of this outbreak from The Gazette, on Monday he praised the close relationship Birds Eye officials developed with the county’s health department.
“I’m encouraged by how willing they have been to work with us,” he said.
Hare, the company spokesman, said Birds Eye had about 100 employees diagnosed with COVID-19 as of April 27, which was the most current number he had available.