Judge throws out Racine’s coronavirus plan, says it’s unconstitutional

A Racine judge threw out the city’s sweeping coronavirus ordinance Wednesday, saying it violated the state constitution because it interfered with the right to assemble and was so broadly written that ordinary citizens couldn’t understand it. 

“It is likely the strictest, and most over-arching COVID-19 order or ordinance in the country,” Racine County Circuit Judge Jon Fredrickson wrote. “This court finds that no average person of ordinary intelligence can make sense of its sprawling breadth.”

The city immediately appealed the decision and Racine Mayor Cory Mason dubbed Fredrickson a “right-wing-activist judge.”

“Twenty-five city residents have died from this virus (and) I hope no one else will die because of Judge Fredrickson’s judicial activism,” Mason said in a statement.

It was the latest in a series of decisions by Fredrickson against the city and its public health administrator. The lawsuit was brought by the owner of a CrossFit gym who said the rules threatened his business.

Fredrickson, who was appointed to the bench in 2018 by then-Gov. Scott Walker, wrote that he was particularly troubled by the city’s policy for mass gatherings. That policy “abridges the rights of the citizens of Racine, and anyone visiting, to peaceably assemble, consult for the common good, or to petition the government” as guaranteed in the state constitution, he wrote. 

The ruling leaves Racine with no plan to combat the pandemic just as cases surge nationally. But Fredrickson wrote that the city could adopt a new plan to deal with the illness, provided that it was written more narrowly. 

The ruling comes less than two months after the state Supreme Court voted 4-3 to strike down the statewide stay-at-home order issued by Democratic Gov. Tony Evers’ administration. In the hours after that decision, Racine and other municipalities scrambled to approve their own coronavirus plans. 

Fredrickson’s decision applies only to Racine, but the appeal could lead to a decision that affects other communities as well.

The Racine decision came the same day Dane County issued an order that closed indoor service at bars starting Thursday. Milwaukee officials, meanwhile, are considering requiring people to wear masks in public. 

When the Racine case started, it focused on an order issued by the city’s public health administrator, Dottie-Kay Bowersox. But after Fredrickson blocked her order, the city council approved an ordinance that incorporated Bowersox’s order and explicitly gave her the power to adjust the order as she saw fit. 

Wednesday’s decision threw out the ordinance but didn’t dwell on what powers Bowersox can exercise on her own. 

During a lengthy hearing Tuesday, Fredrickson said he was likely to uphold parts of Racine’s ordinance. But in his ruling, he said he concluded he had to get rid of it entirely because of how it was written. 

Contact Patrick Marley at patrick.marley@jrn.com. Follow him on Twitter at @patrickdmarley.