Wisconsin High Court Takes New Look at Virus Restrictions

The Dairyland Brew Pub opens to patrons in Appleton, Wis., on May 13, 2020. (William Glasheen/The Post-Crescent via AP File)

MADISON, Wis. (CN) — The Wisconsin Supreme Court heard arguments Thursday in a case retroactively examining state health officials’ ability to issue coronavirus safety orders in the face of surging infections and deaths.

The right-leaning court prodded attorneys with questions about rulemaking and the extent of executive power during arguments in a case brought by the Tavern League of Wisconsin, the latest in a series of challenges to the ability of Democratic Governor Tony Evers’ administration to create safeguards against the spread of Covid-19.

At issue is a Nov. 6 ruling from the Wisconsin Court of Appeals which halted enforcement of Health Services Secretary Andrea Palm’s order limiting public gatherings. That order, the court found, was an administrative rule and needed to go through the necessary process for making such rules, which includes review by the Republican-controlled Legislature that has aggressively pushed back on virus-related restrictions in the Badger State.

Arguing against the public-gathering restrictions Thursday was Illinois attorney Misha Tseytlin, representing a coalition of anti-abortion groups and a bar in the city of Amery, 20 miles from the Minnesota border.

Tseytlin argued that the order, which expired last month, was a “rule” falling under a framework the state’s high court laid out in a May decision striking down Palm’s initial Covid-19 lockdown order, and that Palm and her department were attempting an end run around the ruling.

“They are repackaging the same exact argument they made the last time,” Tseytlin said. “My friend, again representing the same agency, in the same pandemic, is trying to get this court to take a second bite at the apple, frankly cynically because they think the composition of this court has changed.”

Tseytlin was referring to Wisconsin Assistant Attorney General Colin Hector, who argued on behalf of Palm and countered that the latest order’s gentler restrictions on gatherings and businesses put it under one of the exceptions laid out in the earlier ruling, which allowed Palm to order the closure of schools.

“All this order does is forbid public gatherings, and that’s something that’s explicitly allowed under the plain meaning of the statute,” he said.

The seven-justice panel – including recent addition Jill Karofsky, a liberal judge who joined the court in August after her election in April – peppered each attorney with questions, focusing heavily on what some of them called inconsistencies in the earlier ruling.

Justices Ann Walsh Bradley and Rebecca Dallet especially sought to clarify what justified the exemptions the May ruling allowed for. Both liberal justices signed on to a lengthy dissent to that ruling penned by Chief Justice Patience Roggensack.

Conservative Justices Annette Ziegler and Rebecca Bradley remained largely silent throughout the proceedings Thursday.

Speaking after the hearing, Tseytlin said he was optimistic about the judges’ responses. Their focus on the May ruling, he said, was encouraging.

“To the extent that the court was focusing on that, that’s certainly a positive development,” he said in an interview.

He also expanded on his belief that the state was seeking a mulligan on the earlier ruling.

“Once the composition of the court had changed, lo and behold, they put forward a regime of selective-capacity limits statewide,” Tseytlin said.

Rather than attempting to make rules unilaterally, he said, the Department of Health Services should have simply gone through the “very quick” rulemaking procedure, with input from state lawmakers.  

Wisconsin has few remaining safeguards against the spread of the novel coronavirus, with partisan deadlock and constant litigation preventing business shutdowns and stymying Governor Evers’ efforts to issue emergency orders. A statewide mask mandate has yet to be overturned, but the public-gathering order is no longer in effect.  

Hector said the court’s ruling on whether the order was legally sound will impact the department’s ability to make any new orders as cases spike.

“I think that it’s appropriate and reasonable for this court to reach the issue of whether Emergency Order 3 is a rule,” the state’s attorney told the judges, “because of the effect it will have immediately on DHS’s ability to respond to this particular pandemic as well as future potential outbreaks or pandemics faced in the state.”

With no statewide response, Wisconsin has become a regional hot spot for the respiratory disease, with a total of 448,000 cases and 4,255 deaths as of Thursday. The plague hit a peak in the state in mid-November, approaching an average of 7,000 new confirmed cases each day, but began to level off somewhat at the end of the month. As of Thursday, the daily average for new cases was 3,191, according to the health department.

Neighboring Michigan, which has nearly double Wisconsin’s population, is just barely outstripping the state in case numbers with 478,000 total cases, and Minnesota’s slightly lower population has reported only 384,000 total cases.

Speaking after the hearing, Tseytlin said the local authorities had a handle on the issue. “We think that the localities in Amery, where we’re located, are able to ensure that public health is maintained. There’s no need for a statewide rule from DHS,” he said.

The high Covid-19 numbers led Evers to open a field hospital in October. Meant to be a contingency plan in case hospitals are overwhelmed, the 530-bed care facility set up at the state fairgrounds near Milwaukee is still seeing relatively low numbers of patients.

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