Wisconsin Supreme Court shuts down Stay-at-Home order
Protesters at Wisconsin Capitol Building (Lauren Justice/New York Times)
On May 13th, 2020, the Wisconsin Supreme Court delivered a 4-3 ruling against Wisconsin’s “Safer-at-Home order, more specifically, Emergency Order 28. The order was orchestrated by Wisconsin Department of Health Services (WDHS) Secretary-designee, Andrea Palm. Palm’s originally ordered extensive public direction under Emergency Order #12, Safer-at-Home order, effective March 25th, but later amended the Safer-at-Home order in Emergency Order #28, effective April 16th.
Palm is an un-elected official and her position in the WDHS is under the administration of Gov. Tony Evers, a Democrat. Evers’ faced opposition to his Safer-at-Home order from Republican lawmakers who sought after more regional-based decision-making; Republicans sought stronger restrictions on areas of higher concentrations and loosening regulations on those with lower levels.
Evers’ WDHS decision was a response to mitigate the effects of the novel coronavirus, and they had pushed for heavier public restrictions due to a lack of reliable vaccines and treatments. The Safer-at-Home order was mandatory, prohibited the gathering of private parties that did not belong to the same household, “non-essential businesses” had to adhere to Minimal Basic Operations and transgressors could be imprisoned for 30 days, subjected to a $250 fine or both.
The Republican-led legislature filed a petition to the Wisconsin Supreme Court calling the stay-at-home order, Emergency Order #28, to be unconstitutional according to the Wisconsin state constitution. Palm and the Evers administration defended their actions as completely lawful under Wisconsin Statute Chapter 252.02.
The WDHS policy also faced public discontent as large protests formed in the capital, Madison, WI. These protests were fueled by conservative calls for resistance against the executive’s decision to lock-down the start in order to “flatten the curve”, which is the most commonly used term for lessening the burden on the healthcare system. Among chief concerns for the protesters was the order's predicted effect on local, small businesses that would be hardest hit by limited operations.
Conservative Justice Patience Roggensack, one of the 5 conservative justices in the 5-2 conservative majority in the court, delivered the opinion of the court. Conservative Justice Brian Hagedorn joined the liberal Justice minority dissenting in favor of the Evers’ administration. Roggensack’s majority opinion did not negate Palm’s authority to implement restrictive measures to combat COVID-19, but condemned the avenue by which she issued the order.
Roggensack acknowledges that Palm derived authority for her decision from Wisconsin Statute 252.02, but Roggensack asserts that Palm’s order exceeded the authority she claimed that the statute had vested in her. Furthermore, the Wisconsin Republican-led Legislature, the body who filed against Palm’s order, argued that Palm’s order was classified under Wisconsin’s procedural law as a “Rule” and did not follow proper procedure to enact this “Rule”.
Roggensack’s main argument centered on Palm’s failure to follow proper procedure for enacting her statewide order and that they deemed Emergency Order #28 unable to exercise restrictive authority in the face of the pandemic to include all citizens. Therefore, the majority declared that Palm’s Emergency Order #28, whose “rule” was in violation of Wisconsin Statute 252.02, was “unlawful, invalid, and unenforceable”.
In retort, Palm claims that “Rule” did not correctly define her actions, but rather as an order for state-wide application, which would exempt her from following “Rule”-enacting procedures. Justice Hagedorn joined in the dissent by highlighting what a unique health crisis the state of Wisconsin and the country, as a whole, are faced with. Justice Hagedorn goes further to say that the Legislature’s petition for a law being unconstitutional, which they themselves had drafted and passed, was not the legal jurisdiction of their branch in government.
Justice Hagedorn furthered his disagreements by agreeing with Palm’s definition of “rule” since it was for statewide application for the situation at hand rather than general application, which the majority had decided, that would last beyond the situation. In conclusion, Hagedorn warned against tyranny of the judiciary, ignorance of the rule of law for the sake of liberty, and deemed the Legislature’s claim as insufficient worthy of dismissal.
This court decision is a win for Republican lawmakers in the legislature because any future orders that Evers’ administration would be subject to approval by the Legislature’s rulemaking committee. This grants the Legislature the ability to veto any executive decisions at their own discretion.
Despite this blow to executive decision-making, the court decision has increased localities’ ability to open based on their own judgement. Furthermore, businesses have proceeded to ramp up operations as citizens have rushed to bars throughout Wisconsin due to relaxation of restrictions.
The day after the court’s decision had been released, Governor Evers released a statement over the radio in response to the court’s decision. “Now just because the Supreme Court says it’s okay to open, doesn’t mean the science does. Folks, deadly viruses don’t go away on their own and they don’t go away because the Supreme Court says so,” Evers said. Evers concluded his statement by voicing his disappointment, “I am disappointed in the Court’s decision, but our top priority has been and will remain doing what we can and what we have to do to protect the health and safety of the people of our state.”
One of the biggest questions following this decision by the Wisconsin Supreme Court was how other state’s executive and judiciaries will handle the reopening process. Four states, as well as Puerto Rico and D.C., will remain shut down at least until the end of May as states across the US while all the rest have opened or will open within the week.
