Wisconsin Justices Rule Governor Alone Cannot Limit Public Gatherings

The high court found the Democratic governor unlawfully went around legislators with his coronavirus emergency order, delivering another blow to the chief executive’s authority to swiftly enact mandates in response to the pandemic.

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) — For the second time in two weeks, the Wisconsin Supreme Court ruled that the governor cannot create and enforce emergency restrictions to stop the spread of Covid-19 without getting approval from lawmakers.

In a 4-3 decision split along party lines, the conservative-leaning high court held Wednesday that a coronavirus emergency order enacted in October by Governor Tony Evers and former Department of Health Services chief Andrea Palm was a “general order of general application” effective statewide, meaning it should have been submitted to statutory rulemaking procedures and given the green light by the GOP-majority Wisconsin Legislature.

The governor’s administration was quickly brought to court over the rule last fall by the Tavern League of Wisconsin — one of the state’s most powerful lobbies representing one of its signature industries — in addition to two northwestern Wisconsin bars and other conservative groups who joined the lobby’s lawsuit, which claimed that a 25% capacity cap on bars, restaurants and other businesses was illegally enacted and would further tank struggling businesses trying to stay afloat during the pandemic.

The Badger State was, at the time, dealing with a coronavirus surge among the worst in the nation, which filled the majority of state hospitals’ ICU beds and prompted Evers to open a field hospital south of Milwaukee.

At first, Barron County Circuit Court Judge James Babler upheld the governor’s order, finding in part that the plaintiffs had not proven they had been complying with the emergency rule, much less that they were harmed by its restrictions.

But an appeals court in Wausau reversed Babler’s decision and tossed the emergency order weeks later. The three-judge appeals panel’s 2-1 ruling deemed the order fatally flawed because it did not involve the legislature’s rulemaking procedures, rationale derived from a decision from the Wisconsin Supreme Court in May 2020 that nixed an extension to the Evers administration’s first coronavirus lockdown mandate from March of that year.

Chief Justice Patience Roggensack pointed to that previous high court decision in the 18-page majority opinion she wrote for Wednesday, offering plainly that the public gatherings order is a rule as defined in statutes and reinforced by the court’s May 2020 ruling.

“Therefore, Emergency Order 3 should have been promulgated according to rulemaking procedures as set forth in [Wisconsin law]. Because it was not, Emergency Order 3 was not validly enacted and was unenforceable,” Roggensack said.

Justice Brian Hagedorn, a conservative who has emerged as an occasionally surprising swing vote on the high court, joined the court’s liberals in May 2020 in dissenting against nixing Evers’ first coronavirus mandate back when the court had a 5-2 conservative majority. On Wednesday, he filed an opinion concurring with the majority’s knock on the governor’s emergency powers while maintaining that he still feels the May order’s reasoning was “incomplete.”

“My objections to the court’s legal analysis were no secret,” Hagedorn wrote. “But creative efforts to engineer a different result from an indistinguishable set of facts would, in my view, be a departure from basic principles of judicial decision-making,” finding that regardless of how the court’s decision is viewed, the state health czar essentially did the exact thing the court told her specifically she could not do.

The court’s liberal wing, led by Justice Ann Walsh Bradley, blasted the majority’s decision.

“Trying to get around the plain language of the statute, [the majority ruling] engages in a hocus-pocus interpretation and the plain meaning of the statute somehow seems to vanish,” instead putting up legal roadblocks before the health department even though it has the authority to limit public gatherings, she wrote.

“At a time when public health experts are imploring pandemic-weary Wisconsinites to stay vigilant, a faulty statutory analysis once again leads this court to undermine public health measures,” Bradley said.

Evers is now even further restrained by the state’s highest court from taking quick executive action against the Covid-19 pandemic after Wednesday’s decision, which comes on the heels of an order from late March blocking him from unilaterally issuing any new emergency mandates going forward.

Misha Tseytlin, an attorney with the Chicago office of nationwide firm Troutman Pepper who represented one of the businesses and its owner in their lawsuit, applauded the high court’s ruling on Wednesday.

“After losing in a materially indistinguishable case last May, the Evers administration and [Wisconsin Attorney General Josh Kaul] cynically hoped that a change in the court’s composition would lead to a different result this time, thus giving the administration a blank check to devastate any business, at a moment’s notice,” Tseytlin said in an email statement. “As the Wisconsin Supreme Court powerfully showed this morning, a small, family-owned restaurant like the Mix Up can stand up to a powerful governor and attorney general and win when the law is on its side.”

The governor’s office did not immediately respond to a request for reaction to the court’s order on Wednesday.

Palm, a health secretary the GOP-heavy state legislature refused to confirm after Evers appointed her in 2019, who then spent 2020 as a target of near-constant Republican derision, left Wisconsin’s Department of Health Services in January when she was tapped by President Joe Biden’s administration to serve as deputy secretary of the U.S. Department of Health & Human Services.

The Wisconsin health services department, now overseen by interim secretary Karen Timberlake and deputy secretary Julie Willems Van Dijk, did not immediately answer an email for comment on the high court’s decision on Wednesday.

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