Kenosha County, Cudahy withdraw local safer-at-home orders. Are these orders legal?

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KENOSHA COUNTY, Wis. (CBS 58) -- Officials in Kenosha County and Cudahy have both withdrawn the "Safer at Home" orders they implemented, calling into question for other communities whether these orders are legal.

Kenosha County officials enacted a "Safer at Home" order shortly after the Wisconsin Supreme Court overturned the state's order Wednesday night. However, less than 24 hours later, they rescinded the order, which was set to last until May 26.

Business owners in Kenosha County said having constantly changing rules has been "confusing."

"Wednesday evening they said that everybody could open up, and then by Thursday, they said no, and then by today or last night, they said we could back up again. So it's just been this back and forth thing," said Dena Prestininzi, the owner of Cup O' Joe in Twin Lakes.

The coffeehouse, which has been open for just three months, officially allowed customers to dine-in on Friday after weeks of only doing to-go orders.

In a news release after 9 p.m. Thursday night, Kenosha County officials said announced they were rescinding their "Safer at Home" order after receiving guidance from the Wisconsin Counties Association that "suggested that the provision struck down by the State Supreme Court also applied to local health officers."

However, the Wisconsin Counties Association issued a memo to its members Friday saying in part, "Wisconsin Counties Association has made no statement on the legality of local public health orders and has issued no formal guidance on such. The Association held a webinar call with membership on May 14, 2020 discussing uncertainty regarding the Supreme Court ruling and its impact on state and local authority."

The memo said "counties should act in the best interest of their citizens. We recommend counties consider WEDC guidelines on business reopening, WHA health and hospital data , and communication with neighboring counties to facilitate a regional approach if possible."

Kenosha County officials did not respond to CBS 58's repeated requests for an interview.

On Friday afternoon, officials in Cudahy announced they were withdrawing their "Safer at Home" order "in response to differing and updated legal guidance."

"With the varying guidance and more time to review best practices moving forward, together we’ve determined that we will withdraw our order and instead RELY on guidance and recommendations, rather than requirements," said Cudahy Mayor Tom Pavlic in a news release.

"Safer at Home" orders are in still in place in the city of Racine and all municipalities in Milwaukee County except Cudahy. Milwaukee County did not issue an order; instead, each municipality individually signed on to an order, making it different from the one originally enacted in Kenosha County.

So are these local orders legal? Gov. Tony Evers' administration was asked this question during a news briefing Thursday.

"We're going to be seeing a patchwork of orders across the state, and that's authorized under state law," said Evers' legal counsel, Ryan Nilsestuen.

Nilsestuen said public health officers have broad authority under state law.

"While legislative Republicans and their allies on the Supreme Court overturned the state's ("Safer at Home" order) on highly technical rulemaking grounds, those same requirements for rulemaking do not apply for local health officers," Nilsestuen said.

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