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Attorneys threaten legal action over vaccination mandate, Rock Haven layoffs

JANESVILLE

Two law firms are pressing Rock County to withdraw its mandatory COVID-19 vaccination policy at Rock Haven nursing home or allow laid-off workers who have declined vaccination to return to their jobs.

In two letters sent to county officials Feb. 2 by different law firms, the attorneys argue the county’s mandate is unconstitutional and illegal. Both firms represent Rock Haven employees laid off last month after they declined to receive the COVID-19 vaccine.

Both letters obtained by The Gazette suggest that the employees could sue the county if it doesn’t repeal its mandate or allow laid-off workers who declined vaccination without an exemption to return to work.

One lawyer, Fitchburg attorney Michael Anderson, said he is representing several employees who either were laid off, quit or agreed to get the Moderna vaccine at Rock Haven against their will because they feared layoff.

Anderson sent a Feb. 2 demand letter to Rock County Administrator Josh Smith requesting that one of his clients, a longtime Rock Haven employee, and others who were laid off be “allowed to continue their employment with Rock County without jeopardizing said employment through the basic exercises of their Constitutional (privacy) rights.”

In another Feb. 2 letter, an attorney with the New York law firm Siri & Glimstad told Smith and Rock Haven Interim Administrator Sara Beran that Rock Haven’s vaccine mandate is “illegal” and “unenforceable.”

Siri & Glimstad bills itself on social media as a law firm specializing in “vaccine injury.”

Under a new county board resolution passed last month, some Rock Haven employees were allowed to decline the vaccine under exemptions tied to health concerns or religious objections. However, others have been laid off or quit because they refused the vaccine but didn’t meet exemptions, officials have said.

The Siri & Glimstad letter argues that the county should repeal the mandate because it “violates federal law” and “federal prohibition” of mandating vaccines that have not received full federal approval. The attorney demands that the county withdraw the mandate, calling it “coercion.”

The letter warns that if the county doesn’t rescind the mandate, it “will result in legal action being filed against you to strike down this illegal requirement. Govern yourselves accordingly.”

Rock County Clerk Lisa Tollefson said her office has not yet received any claims that deal with the Rock Haven COVID-19 vaccine mandate.

The Gazette obtained a copy of a letter from Rock County Corporation Counsel Richard Greenlee, who acknowledged that he had received Anderson’s letter. Greenlee did not immediately respond to a request for comment.

An attorney for Siri & Glimstad did not respond to a request for comment on the firm’s letter.

The firms represent different employees at Rock Haven, but both letters were dated Feb. 2, which was the same day the nursing home rolled out its second wave of mandated vaccinations for employees.

According to Rock Haven employees and staffing reports obtained by The Gazette, at least 20 employees—including some nurses—have either quit or been laid off for declining the vaccine after the mandate was implemented in late December.

Some staff members have told The Gazette they don’t intend to get the vaccine. Others have said they want to wait until the public has more time to learn how people tolerate the vaccine.

As of this week, COVID-19 vaccines continue to be available nationwide under federal emergency approval, but they have not yet received full approval by the Food and Drug Administration.

County officials said they initially mandated vaccines at Rock Haven to protect its elderly residents, a population health officials consider the most vulnerable to COVID-19.

Anderson, who operates Fitchburg firm MJA Law, argues in his letter that Rock Haven employees have a right to privacy under state and federal law, and their “liberty interest” under the 14th Amendment could be violated by a vaccine mandate.

Anderson said he has learned that many of his clients are considered family to Rock Haven residents, who have been isolated from their loved ones for months.

He thinks the county’s enforcement of the mandate—which has stripped health care workers of their livelihoods at a time when the vaccine isn’t widely available—sends a message that contradicts the glowing descriptions some public officials have applied to nurses during the pandemic.

“My goal is to help these heroes, these frontline workers, the ones that were trumpeted when COVID first came out,” he said.


Politics
AP
Trump trial gets go-ahead after emotional, graphic first day

WASHINGTON

House prosecutors Tuesday wrenched senators and the nation back to the deadly attack on Congress as they opened Donald Trump’s historic second impeachment trial with graphic video of the insurrection and Trump’s own calls for a rally crowd to march to the iconic building and “fight like hell” against his reelection defeat.

The detailed and emotional presentation by Democrats was followed by meandering and occasionally confrontational arguments from the Trump defense team, which insisted that his remarks were protected by the First Amendment and asserted that he cannot be convicted as a former president. Even Trump’s backers in the Senate winced, several saying his lawyers were not helpful to his case.

The senators sitting as jurors, many of whom fled for safety themselves the day of the attack, watched and listened, unable to avoid the jarring video of Trump supporters battling past police to storm the halls, Trump flags waving. While many minds are made up, the senators will face their own moment to decide whether to convict or acquit Trump of the sole charge “incitement of insurrection.”

The heavy emotional weight of the trial punctuates Trump’s enduring legacy as the first president to face an impeachment trial after leaving office and the first to be twice impeached. The Jan. 6 Capitol siege stunned the world as hundreds of rioters ransacked the building to try to stop the certification of Democrat Joe Biden’s victory, a domestic attack on the nation’s seat of government unlike any in its history. Five people died.

“That’s a high crime and misdemeanor,” Rep. Jamie Raskin, D-Md., declared in opening remarks. “If that’s not an impeachable offense, then there’s no such thing.”

Trump’s lawyers insist he is not guilty, his fiery words just figures of speech.

In a key early test, senators rejected an effort by Trump’s allies to halt the trial, instead affirming the Senate’s authority under the Constitution to decide the case. They voted 56-44 to confirm their jurisdiction, ruling that impeaching a president after he leaves office is constitutionally permissible. Six Republicans joined the Democrats.

Security remained extremely tight at the Capitol on Tuesday, a changed place after the attack, fenced off with razor wire and with armed National Guard troops on patrol. The nine House managers walked across the shuttered building to prosecute the case before the Senate.

White House press secretary Jen Psaki said Biden would not be watching the trial of his predecessor.

“Joe Biden is the president, he’s not a pundit, he’s not going to opine on back and forth arguments,” she said.

With senators gathered as the court of impeachment, sworn to deliver impartial justice, the trial started with the Democratic House managers’ gripping recollections, as they described police officers maimed in the chaos and rioters parading in the very chamber where the trial was being held.

Trump’s team countered that the Constitution doesn’t allow impeachment at this late date. Though the trial now proceeds, that is a legal issue that could resonate with Republicans eager to acquit Trump without being seen as condoning his behavior.

Lead lawyer Bruce Castor said he shifted his planned approach after hearing the prosecutors’ opening and instead spoke conversationally to the senators, saying Trump’s team would do nothing but denounce the “repugnant” attack and “in the strongest possible way denounce the rioters.” He appealed to the senators as “patriots first,” and encouraged them to be “cool headed” as they assess the arguments.

Trump attorney David Schoen turned the trial toward starkly partisan tones, saying the Democrats were fueled by a “base hatred” of the former president.

Republicans made it clear that they were unhappy with Trump’s defense, many of them saying they didn’t understand where it was going—particularly Castor’s opening. Louisiana Sen. Bill Cassidy, who voted with Democrats to move forward with the trial, said that Trump’s team did a “terrible job.” Maine Sen. Susan Collins, who also voted with Democrats, said she was “perplexed.” Sen. Lisa Murkowski of Alaska said it was a “missed opportunity” for the defense.

The early defense struggles also underscored the uphill battle that Trump’s lawyers face in defending conduct that preceded an insurrection that senators themselves personally experienced. Though they will almost certainly win Trump’s acquittal—by virtue of the composition of the Senate—they nonetheless face a challenge of defanging the emotion from a trial centered on events that remain raw and visceral, even for Republicans.

At one pivotal point, Raskin told his personal story of bringing his family to the Capitol the day of the riot, to witness the certification of the Electoral College vote, only to have his daughter and son-in-law hiding in an office, fearing for their lives.

“Senators, this cannot be our future,” Raskin said through tears. “This cannot be the future of America.”

The House prosecutors had argued there is no “January exception” for a president to avoid impeachment on his way out the door. Rep. Joe Neguse, D-Colo., referred to the corruption case of William Belknap, a war secretary in the Grant administration, who was impeached, tried and ultimately acquitted by the Senate after leaving office.

If Congress stands by, “it would invite future presidents to use their power without any fear of accountability,” he said.

On the vote, six Republicans joined with Democrats to pursue the trial, just one more than on a similar vote last week. Cassidy joined Collins, Murkowski, Mitt Romney of Utah, Ben Sasse of Nebraska and Pat Toomey of Pennsylvania. But the total of 56 was still far from the two-thirds threshold of 67 votes that would be needed for conviction.

It appears unlikely that the House prosecutors will call witnesses, in part because the senators were witnesses themselves. At his Mar-a-Lago club in Florida, Trump has declined a request to testify.

Presidential impeachment trials have been conducted only three times before, leading to acquittals for Andrew Johnson, Bill Clinton and then Trump last year.

Because of the COVID-19 crisis, senators were allowed to spread out, including in the “marble room” just off the Senate floor or even in the public galleries, but most were at their desks.

Presiding was not the chief justice of the United States, as in previous presidential impeachment trials, but the chamber’s senior-most member of the majority party, Sen. Patrick Leahy of Vermont.

Under an agreement between Senate Majority Leader Chuck Schumer and Republican leader Mitch McConnell, the substantive opening arguments will begin at noon today. The trial is expected to continue into the weekend.

Trump’s second impeachment trial is expected to diverge from the lengthy, complicated affair of a year ago. In that case, Trump was charged with having privately pressured Ukraine to dig up dirt on Biden, then a Democratic rival for the presidency.

This time, Trump’s “stop the steal” rally rhetoric and the storming of the Capitol played out for the world to see.

The Democratic-led House impeached the president swiftly, one week after the attack. Five people died, including a woman shot by police inside the building and a police officer who died the next day of his injuries.

Timothy Naftali, a clinical associate professor at New York University and an expert on impeachment, said in an interview, “This trial is one way of having that difficult national conversation about the difference between dissent and insurrection.”


Obituaries and death notices for Feb. 10, 2021

Mary Ellen Farley

Douglas L. Hayes

Annette L. Losey

Kathleen “Kay” Stacey

Louis J. Vogt


Parker’s Alyssa Ayers goes up for a contested shot on the breakway during their Division 1 regional quarterfinal basketball game against Milton at home on Tuesday, Feb. 9.


Government
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Neenah has seen little backlash from its transportation utility, which differs from Janesville proposal

JANESVILLE

The first Wisconsin city to implement a transportation utility has not faced legal ramifications because of it—a concern that has been floated during Janesville City Council discussions on creating such a utility.

Neenah Finance Director Michael Easker said his city has not faced any legal challenges because of its transportation utility, which was created in 2019, despite having been the first city to have one.

In Janesville, city council members have expressed concern about potential legal challenges if the city next year creates a transportation utility, which would change how the city pays for road maintenance.

Concerns were heightened by a statement from Wisconsin Manufacturers & Commerce, the state chamber of commerce, claiming that the city does not have solid legal ground to move forward with the utility.

City Attorney Wald Klimczyk said the organization has taken an extreme position on the issue, saying that because state statute does not explicitly outline the idea of a transportation utility, then it is not allowed.

Municipal governing bodies have the power to make many of their own decisions, including implementation of a utility, under the state’s home rule and empowerment statutes, Klimczyk said.

“We have solid ground to proceed,” he said.

Neenah was lucky to fly relatively under the radar in the year or so it spent planning for and creating a utility, Easker said

However, its transportation utility differs from Janesville’s proposal.

In Neenah, the concept stemmed from a desire to eliminate special assessments that were charged to property owners for road reconstruction, Easker said. Neenah still borrows money for roads in tandem with the utility. The city does not have a wheel tax.

By contrast, Janesville is considering a utility primarily to reduce debt and create more sustainable revenue for its annual 12-mile road rehabilitation program.

In Neenah’s transportation utility, each property is charged a fee based on how many equivalent runoff units it has. Equivalent runoff units are a measurement commonly used with stormwater utilities.

Under Neenah’s program, a single-family home is considered to be one equivalent runoff unit. Larger commercial properties are more equivalent runoff units depending on their size and land use, Easker said.

Each equivalent runoff unit equates to a fee of $23 per year, he said.

Janesville’s transportation utility would be based on the average daily trips generated at a property. Trip data and averages are determined by a national standard often used in construction.

Under a transportation utility, Janesville businesses would pay much more than they do now for road maintenance. Tax-exempt entities such as churches also would have to pay for roads as they do for water and trash collection.

Easker said Neenah’s implementation process included several conditions that helped ease concerns from residents and businesses. They included:

  • Capping the maximum equivalent runoff unit amount for a property at 90, making the maximum possible annual charge $2,070.
  • Freezing the utility fee for the first five years.
  • Allowing residents who had to pay special assessments for roads in the last five years to be waived from paying the utility for five years.
  • Communicating frequently with the community leading up to approval.

Neenah’s utility generates lower fees across the board than Janesville’s would, which Easker said created an easier approval process than Janesville might have.

Janesville officials have pitched the utility as a way to shift the burden of road reconstruction onto businesses, which generate larger traffic volumes than residential properties.

However, the fees could have unintended consequences for some residents, especially those who are low income, council member Paul Benson said last week.

Landlords and business owners could offset their higher utility payments by charging more for rent, goods and services, which could mean a higher cost to live for Janesville residents, Benson said.

The Gazette reached out to representatives from ECHO, Community Action and the Wisconsin Housing and Economic Development Authority, all of which help low-income households, to see if they had studied the impact a transportation utility could have on their clients.

Representatives from all three said the issue was not on their radar and declined to comment because of a lack of background knowledge.

For residential property owners to see true savings from the utility, the city would need to ensure more spending or debt issuance would not replace the savings from cash-funding roads. Council members have identified that caveat but have not yet fully explored it.


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