Part One: RIDERLESS HORSE IN A COVID STORM: Wisconsin’s Approach to COVID-19
by Jacques C. Condon
PART ONE: Riderless Horse In A Covid Storm
This post is part one, with this and other posts raising issues worth considering in addressing Wisconsin’s response to COVID-19, also known as the coronavirus pandemic.
On Tuesday, March 24, 2020, the State of Wisconsin Department of Health Services (DHS), at the direction of Governor Tony Evers, issued what it called “Emergency Order #12 Safer At Home Order” (Order). The Order is in response to what has been identified as the worldwide coronavirus pandemic, commonly described by its identification tag of COVID-19. https://evers.wi.gov/Documents/COVID19/EMO12-SaferAtHome.pdf
In the lead-up to issuance, the Governor commented, publicly, that people were encouraged to stay at home, with the Order a writing that now prohibits activity.
The Governor’s office also issued, directly, as opposed to through DHS, on March 12, 2020, Executive Order #72, suspending administrative rules, activating the State’s National Guard, and directing DHS “to take all necessary and appropriate measures to prevent and respond to incidents of COVID-19 in the State”. https://docs.legis.wisconsin.gov/code/executive_orders/2019_tony_evers/2019-12.pdf
Thus, in suspending rules and empowering an administrative body, the Governor, by the swipe of a pen, empowered that office, directly and indirectly, as the rule-making body of the State. (And I’ll point out in future posts where that authority comes from and what it says.)
Indeed, while there is no mention of curfew in the Order (unless you consider it a 24-hour curfew), it clearly states as an over-riding tenant — if not in plain language — that venturing outside is limited to certain activity or professions outlined in the Order, and, even then, only when people observe “social distancing” between one another; otherwise, the approximately 5.8 million people of Wisconsin have been ordered to stay home.
Of course, unmentioned in the Governor’s commentary, and ultimately unmentioned in the Order, is how the Order impacts unique aspects of the community, and this includes equestrian-based participation and professions.
(The Governor issued a fact-sheet describing the Order, which, in a question and answer format, identifies “golf” as a non-permitted activity.)
In particular, I am weighing in as an attorney with an equestrian law and sports-law practice, and with broad-based experience in representing businesses and individuals throughout the state in other areas — and having argued cases and represented folks at all levels of the legal system, from local to large-scale disputes.
THE RIDERLESS HORSE
As to equestrian, my opinion is that equine professionals, like most businesses, would be exempt from the Order if they so choose. Some municipalities, such as in Sacramento County, California, have specifically mentioned “equestrian activities” as allowable as walking and biking:
[Sacramento Fact Sheet]: Q.. What are ““essential activities”? …[Sacramento Fact Sheet Answer]: “To engage in outdoor activity,provided the individuals comply with Social Distancing Requirements, such as, walking, hiking, biking, running or equestrian activities.”
Governor Evers’s FAQ-sheet doesn’t say this, one way or another:
[Wisconsin Fact Sheet]: Can I go outside for walks, outdoor exercise, or to play?
[Wisconsin Fact Sheet Answer]: Yes. You may engage in outdoor activities that meet social distancing requirements. You may travel to public and state parks for walks, hikes, and bike rides. No team or contact sports are permitted. Playgrounds are closed.
So is equestrian “in” or “out” as an essential business or permitted activity, in Wisconsin?
Most people that I have talked to, in the business world, have looked at the Order and attempted to determine whether they fit within one or multiple categories of what are labeled as “essential businesses”. In terms of horses, there are categories labeling boarding facilities for animals, and professional services, as essential:
– Food and beverage production, transport, and agriculture. … businesses that provide food, shelter, and other necessities of life for animals, including animal shelters, boarding, rescues, kennels, and adopting facilities; …
– Professional services. Professional services, such as legal or accounting services, insurance services, real estate services …
This does not mean that a facility must stay open, however.
The Governor has clearly stated that all for-profit and non-profit businesses with a facility in Wisconsin are required to cease all activities at the facility (unless essential), ordered people not to travel (or do anything, unless allowed), and that people are prohibited from “public or private gatherings of any number” that are outside a single household or living unit (unless expressly permitted by the Order). If a horse owner, barn owner, or any other professional deems it appropriate, they are not required to stay open; each decision should be guided by their knowledge and experience and what they view as responsible.
(And if you are a barn owner that doesn’t have a “force majeure” clause in your boarding agreement or a similar provision that allows for modification of barn rules, we should talk — just saying.)
While the populace grasps next steps, rumor (or fake news) has been on the rise.
Included in such rumor is a fear, feigned or not, of reprisal.
For instance, I have heard a general concern over liability based on the penalty provision of the Order or liability to a business-owner if someone were to get sick. From a penalty standpoint, I will discuss in future posts the Constitutional aspects of this Order as well as the Wisconsin statutes surrounding it; regardless, it is up to each municipality to choose how to enforce the Order, and it is unknown what input law enforcement had into the Order, or the directives.
(News reports, having interviewed local law enforcement, have indicated that arrests would be last resort but possible if they become aware of violations — such as large gatherings at bars — that are not addressed, perhaps after a warning to disburse.)
As to sickness, the Centers for Disease Control and Prevention (CDC) already has guidelines for business — more on guidelines in the next few posts — which includes sending sick people home, washing hands, and asking those who are sick to stay away.
And Wisconsin has its own law on Equine Activity, Wis. Stat. § 895.525, where every participant in such activity “accepts the risks inherent in the recreational activity of which the ordinary prudent person is or should be aware” and each person that participates shall “[h]eed all warnings regarding participation in the recreational activity”.
Here, there is a warning.
And an Order. The Governor has ordered people to stay home based on Covid-19, with CDC guidelines in place to guide individual action.
At the same time, I am not naïve to the social media age, littered with Facebook shaming, back-handed applause, and a road-rage mentality that everyone can be up in everyone else’s business. (The Governor’s Order to stay home “unless” provides ample more material to those who readily engage, on all sides.) The problem, of course, is that the business owner needs to act responsibly, for the business, the people it serves, and themselves, and do so in a situation where even the CDC advises to continually assess.
Thus, just as it may be appropriate for an “Essential Business” to stay open, it would be just as appropriate for one to close — with each decision grounded as, “Given the Governor’s Order, coupled with an assessment of current conditions, it is the decision to open/close for a period of time, which will be reassessed as conditions change.”
Over the next few posts I will shed light on the legal argument, to perhaps guide the public discussion over the coming days and weeks
In particular, when a rule of law attempts to outright “prohibit” activity as opposed to “regulate” activity, there are entirely new questions of federalism, whether the act is Constitutional (at the state and national level), and the separation of powers between branches, as well as the need for open dialogue and discussion.
If any boarder, lease-holder, or even Joe-taxpayer were to question the Governor’s Order and whether there is a future plan, they should direct those inquiries to the Governor’s office, to the Department that issued the order — 608-266-9622 — or their legislative representatives in the Assembly or Senate.
In the meantime, stay turned for my next post on election law in a pandemic age.
Jacques C. Condon, Marquette 1999, is owner of Condon Law Firm, LLC, in Thiensville, handling civil litigation, business law, and problem-solving cases ranging on everything from sports and entertainment to local-level government action — and much more in between.