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Some Wisconsin Sheriffs plan to defy Gov. Evers’ order. Is that legal?

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LA CROSSE, Wis. (WXOW) - Racine County Sheriff Christopher Schmaling and Polk County Sheriff Brent Waak have both spoken out against Governor Tony Evers' extension of the state's Safer at Home Order due to COVID-19.

Questions have since circulated about the legality of this issue and if the order trumps a sheriff's authority.

News 19 spoke with local attorney David Pierce Jr. of Johns, Flaherty & Collins SC to see if this move by these sheriffs is legal.

“The sheriff’s of each of the 72 counties are elected, and they take an oath to the constitution, not an oath to the Governor’s orders, so if they think they have a valid basis not to be enforcing a law, they won’t necessarily enforce it,” said Pierce Jr.

The decision for a sheriff on whether or not to enforce the order comes down to discretion. Pierce Jr. said that people often see this discretion used differently on a county to county basis.

"They have a lot of discretion to prioritize certain laws than to not prioritize other laws," said Pierce Jr. "You see that with a lot of issues like speeding, marijuana enforcement, and you’ll see it with safer at home, I’m sure.”

Sheriff Schmaling of Racine County said in his statement that he plans to let the county health department enforce the order instead.

During Wednesday's La Crosse Health Department COVID-19 briefing, News 19 asked health officials about the situation unfolding around the state. La Crosse County has not had a new case in a little over a week. Despite the low number of cases, Public Health Nursing Manager Jacqueline Cutts stated that the department supports Governor Evers' extension of the order.

"If we were to go back to life as normal here next week or the week after, we are worried that we would see additional rises in cases and be back to where we were at the beginning, and you know we would rather see a more sustainable return for the economy so that it isn’t something that we have to keep going back and forth with," said Cutts.

Cutts added that the department is working closely with local partners including law enforcement on containing the spread of the virus and ensuring safety in local communities.

Each county sheriff can use their discretion to decide whether or not to truly enforce the law, but that could be superseded by state law enforcement like Wisconsin State Patrol, according to Pierce Jr.

The issue of discretion expands beyond just law enforcement when dealing with an emergency order.

"After an arrest is made or a ticket is issued, it’s up to the district attorney or city attorneys to decide whether or not they want to prosecute it, and then if they do want to prosecute it, it’s up to the elected judges to decide what type of punishment they would want," said Pierce Jr.

As of right now, no local county sheriffs have come out opposing the extension of the order or plan not to enforce it.

Mike Beiermeister

WXOW Weekend Anchor and Reporter

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