Wisconsin Justices Strike Down Covid Lockdown Order

Protesters gather for a rally against Wisconsin Gov. Tony Evers’ extended stay-at-home order in Madison on April 24, 2020. (Amber Arnold/Wisconsin State Journal via AP)

MADISON, Wis. (CN) — The Wisconsin Supreme Court on Wednesday struck down the Democratic governor’s extended safer-at-home order meant to stymie the spread of the coronavirus, finding the governor and state health officials cannot unilaterally lock the state down in a public emergency without the approval of lawmakers.

The conservative-majority high court’s 4-3 decision was delivered by Chief Justice Patience Roggensack in coalition with three of the court’s other conservatives, Justices Annette Ziegler, Rebecca Grassl Bradley and Daniel Kelly. The court’s liberal coalition, Justices Ann Walsh Bradley and Rebecca Dallet, was joined by conservative Justice Brian Hagedorn in their dissent.

The high court’s decision officially ended Wisconsin’s statewide coronavirus shutdown enacted by acting Department of Health Services chief Andrea Palm in concert with Governor Tony Evers, leaving Wisconsin’s 72 counties and hundreds of municipalities to negotiate a patchwork system of public health restrictions in the sudden absence of a broader order from the state’s executive branch.

The GOP-controlled Wisconsin Legislature sued Palm over the state’s lockdown on April 21, directly petitioning the high court to block an extension of the Badger State’s safer-at-home order shuttering most businesses and keeping people in their homes through Memorial Day weekend.

Republican lawmakers contended that Palm, as an unelected state official the Wisconsin Senate has not officially confirmed since her appointment in early 2019, lacked the authority to mandate such a statewide shutdown by herself without submitting the extension order to legislative rulemaking procedures.

The Legislature also opined that rural parts of the state with few confirmed cases of the virus should not be held to the same onerous lockdown standards as more densely populated cities like Madison and Milwaukee, the latter of which has seen more than half of the state’s deaths concentrated disproportionately in poorer black communities.

The high court agreed with the Legislature Wednesday, offering in its 32-page majority opinion that Palm exceeded her statutory authority by extending the lockdown without first getting a thumbs up from the Legislature and by threatening fines or imprisonment if the lockdown order was not followed.

“We do not conclude that Palm was without any power to act in the face of this pandemic,” Roggensack wrote. “However, Palm must follow the law that is applicable to statewide emergencies.”

The high court’s order enjoins enforcement of Palm’s lockdown extension, but the court decided not to grant a six-day stay of its injunction recommended by the Legislature to give it and the Evers administration time to hash out new rules.

Rationalizing that since more than two weeks has passed since the court took up the Legislature’s case, the high court decided to leave it to the Republican-controlled Legislature and the Democratic administration to work together in good faith to establish lawful rules on their own, trusting in a level of consensus and collaboration the two bodies routinely fail to manage.

“People, businesses and other institutions need to know how to proceed and what is expected of them,” the majority said. “Therefore, we place the responsibility for this future lawmaking with the legislature and [health department] where it belongs.”

Badger State Democrats immediately condemned the high court’s consequential move Wednesday.

Evers’ office released a statement expressing regret that the court’s decision may jeopardize the work Wisconsin had been doing to maintain safe practices while gradually opening up the state.

“We had reached almost all of our gating criteria,” Evers said. “We had opened up 14,000 small businesses across the state, putting 90,000 folks back to work, and that was because of the good work of Wisconsinites across our state who banded together, stayed home, and stayed safe.”

“Despite that good work, Republican legislators have convinced four justices to throw our state into chaos,” Evers said.

Attorney General Josh Kaul, who was voted into office along with Evers in November 2018 and has regularly clashed with the Legislature since, joined the governor in expressing disappointment Wednesday and called out the Legislature for failing to offer a concrete alternative to the extended lockdown order, which was scheduled to expire in 13 days as of Wednesday.

State Senate Minority Leader Janet Bewley, D- Mason, also promptly took Republican lawmakers to task Wednesday, fuming that “at a time when leadership is needed most, Wisconsin families are left with political games” instead of concise directives from those in power.

“In times of confusion and fear, the people of Wisconsin need clear and consistent leadership,” Bewley said. “The court’s decision today only adds to that uncertainty.”

For his part, Evers had moved to ease some of the lockdown’s restrictions more than once in recent days, including with an executive order on Monday which in part allowed standalone or strip mall retail stores to open up in-person shopping for up to five customers at a time.

Milwaukee Mayor Tom Barrett reiterated Wednesday night that the city’s separate safer-at-home order is still in effect despite the high court’s decision, meaning bars and restaurants in the state’s largest urban center are still prohibited from opening except for takeout, curbside pickup and delivery.

Officials in Dane County, home to the state’s second largest urban area in Madison, also indicated Wednesday night the county’s lockdown order is still in place through May 26 as the statewide order called for.

As of Wednesday afternoon, the Wisconsin health department tallied 10,902 confirmed cases of the coronavirus in the state, including 421 deaths.

Palm’s lockdown extension drew hundreds of protestors to the Capitol in Madison in late April in tandem with a small wave of demonstrations nationwide resisting government mandates further restricting mobility at the cost of inflicting great damage to the economy.

Over half a million Wisconsinites have filed for unemployment since Evers first began moving to close businesses and keep people in their homes as much as possible in mid-March.

The Wisconsin Supreme Court’s more hardline conservative justices derided Palm’s lockdown extension from the get-go, perhaps none so more than Justice Rebecca Grassl Bradley, who compared the lockdown extension to a 1944 U.S. Supreme Court decision justifying Japanese internment camps during arguments in the Legislature’s lawsuit last Tuesday.

In a separate concurring opinion on Wednesday, Grassl Bradley blasted Palm for acting outside of her authority and breaching constitutional separation of powers with her lockdown extension.

“However well-intentioned, the secretary-designee of the Department of Health Services exceeded her powers by ordering the people of Wisconsin to follow her commands or face imprisonment for noncompliance,” she wrote. “In issuing her order, she arrogated unto herself the power to make the law and the power to execute it, excluding the people from the lawmaking process altogether.”

Grassl Bradley laid out that even in a time of pandemic, Palm does not have the power to bypass rulemaking procedures which give a GOP-controlled joint legislative committee the leverage to overturn any rules she and Evers propose.

Liberal-leaning Justice Ann Walsh Bradley used her dissenting opinion to question why the majority chose not to grant a stay of its injunction, charging that the court has essentially struck down a public health directive designed to prevent spread of the coronavirus and left nothing in its place.

Walsh Bradley called on Roggensack to clarify her tiebreaking vote on the issuance of a stay so that some semblance of clarity can be established, although the liberal justice doubted that would help things at this point.

Addressing lawmakers who brought the suit, Walsh Bradley said “if there is no stay, I repeat to the petitioner, the Wisconsin Legislature, the old adage: ‘be careful what you wish for.’”

Justice Rebecca Dallet, the other justice comprising the high court’s liberal wing, charged in another dissent that the state’s highest court had legislated a new policy from the bench in order to do the bidding of Republicans in the Legislature, declaring that “this decision will undoubtedly go down as one of the most blatant examples of judicial activism in this court’s history.”

“A majority of this court falls hook, line, and sinker for the legislature’s tactic to rewrite a duly enacted statute through litigation rather than legislation,” Dallet said.

Conservative Justice Brian Hagedorn, who first joined the bench in August, also dissented from the court’s right-wing bloc on Wednesday in a surprising show of non-partisan alignment.

Hagedorn asserted that it should be left to the Legislature and the executive branch to govern the response to the pandemic, finding that the high court is only to resolve questions of law and is not “here to do freewheeling constitutional theory” or to “step in and referee every intractable political stalemate.”

“The rule of law, and therefore the true liberty of the people, is threatened no less by a tyrannical judiciary than by a tyrannical executive or legislature,” Hagedorn warned. “Today’s decision may or may not be good policy, but it is not grounded in the law.”

Regardless of its internal fissures, the high court’s majority, for now, has spoken. The Legislature and the governor’s office will now have to quickly conjure a seldom seen spirit of goodwill and compromise to figure out the Badger State’s path forward through the pandemic.

State Assembly Speaker Robin Vos, R- Rochester, and Senate Majority Leader Scott Fitzgerald, R- Juneau, issued a joint statement applauding the end of the Evers administration’s lockdown Wednesday night.

Having again prevailed in limiting Evers’ executive authority, something the Legislature has dedicated multiple taxpayer-funded lawsuits to achieve, the two said they “are confident Wisconsin citizens are up to the task of fighting the virus as we enter a new phase.”

“Wisconsin now joins multiple states that don’t have extensive ‘stay at home orders’ but can continue to follow good practices of social distancing, hand washing, hand sanitizer usage and telecommuting,” the lawmakers said. “This order does not promote people to act in a way that they believe endangers their health.”

The Tavern League of Wisconsin, one of the state’s most powerful lobbies representing its vast alcohol retail hospitality industry, issued a statement on social media following the high court’s order Wednesday instructing bars to “open immediately.”

At least one bar listened. Video footage on local news Wednesday night showed the Iron Hog Saloon in Port Washington packed with customers, none of whom appeared to be wearing masks or strictly adhering to social distancing guidelines.

President Donald Trump also hailed the reopening of Wisconsin on Twitter Wednesday night, celebrating that “Its Democrat Governor was forced by the courts to let the State Open.”

“The people want to get on with their lives,” the president tweeted. “The place is bustling!”

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