The Wisconsin Supreme Court in a 4-3 decision Wednesday, May 13, struck down the governor's Safer at Home order on the grounds that the head of the state health department exceeded her authority and did not follow proper procedures in extending the order.
The high court determined Emergency Order 28, signed April 16 by DHS Secretary-designee Andrea Palm, is a “general order of general application,” making it a “rule” under state law and subject to rulemaking procedures, which could potentially include a public hearing by legislative committee.
Because procedures were not followed, a majority of justices concluded, the emergency order and penalties for noncompliance are “unlawful, invalid and unenforceable.”
The ruling keeps in place a section in the emergency order closing K-12 schools through the rest of the academic year.
Chief Justice Patience Roggensack in her concurring opinion stated she would hold off on actions enforcing the court’s order until May 20 because of the ongoing pandemic, but it was unclear Wednesday evening if her statement meant the court’s decision took effect immediately or if it was stayed until next week. Roggensack also penned the majority opinion.
Justice Ann Walsh Bradley in her dissenting opinion called on Roggensack to clarify.
“If the clarified vote is one for no stay, then the concurrence cannot stand. It is illogical to vote to deny a stay, while at the same time lamenting that because of the way you voted, there is no stay,” she wrote.
Justice Rebecca Bradley blasted Palm’s order as unconstitutional, quoting, among others, Thomas Paine from the pamphlet “Common Sense” that called for independence from Britain in 1776.
She wrote: “In Wisconsin, as in the rest of America, the Constitution is our king — not the governor, not the legislature, not the judiciary, and not a cabinet secretary. We can never ‘allow fundamental freedoms to be sacrificed in the name of real or perceived exigency’ nor risk subjecting the rights of the people to ‘the mercy of wicked rulers, or the clamor of an excited people.’ Fear never overrides the Constitution. Not even in times of public emergencies, not even in a pandemic.”
She again drew comparisons to the internment of Japanese-Americans during World War II and the U.S. Supreme Court case Korematsu v. United States. Her referencing of the case during oral arguments May 5 drew national criticism.
Lawmakers, industry groups react
The Tavern League of Wisconsin, a trade association for bars in the state, in a Twitter message said business owners can reopen immediately, but asked them to follow safety guidelines published by the Wisconsin Economic Development Corporation.
In a 4-3 ruling the State Supreme Court found the Emergency Orders issued by Secretary Palm as unlawful, invalid and unenforceable. The result of this decision is business can open immediately. Please follow the WEDC guidelines you can find on the TLW website.
In a 4-3 ruling the State Supreme Court found the Emergency Orders issued by Secretary Palm as unlawful, invalid and unenforceable. The result of this decision is business can open immediately. Please follow the WEDC guidelines you can find on the TLW website.— Tavern League of Wisconsin (@tavernleaguewi) May 13, 2020
The area’s two state senators, both Democrats, responded to the ruling Wednesday night.
Sen. Patty Schachtner, D-Somerset, who represents parts of St. Croix and Pierce counties, including New Richmond, Hudson and River Falls, called on legislative leaders to present a replacement for Safer at Home.
“We have a responsibility to our communities to take this virus seriously and ensure that we do our part as elected leaders to reduce the risk of a more severe outbreak in the coming weeks,” she said.
Sen. Jeff Smith, D-Brunswick, who represents a small portion of St. Croix County and parts of Pierce County including Prescott and Ellsworth, in a statement Wednesday said the court’s decision could undo work to curb the pandemic.
“We must listen to the medical professionals, not the politicians, to get through this safely with less people unemployed and less families coping with the loss of life from COVID-19,” Smith said. “Although the order was struck down today, I’m confident if we all work together, we can find a way to progress forward again.”
The Republican-controlled state Legislature filed a lawsuit against the Safer at Home order April 21. The Senate and Assembly leaders requested an injunction on the extended order, but suggested the court hold off on enforcing the injunction for six days to allow the health department to work with the Legislature on a new COVID-19 plan.
The original Safer at Home order prohibited non-essential travel and shuttered many businesses across the state since March 25, drawing criticism for crippling the economy. The extended order eased restrictions to allow non-essential businesses to resume deliveries, mailings and curbside pick-up starting April 24.
This week Democrat Gov. Tony Evers announced further easing of restrictions for standalone and strip-mall based retail stores to reopen for up to five shoppers at a time.
The extended order was set to expire May 26.
There were 10,902 lab-confirmed cases of COVID-19 in Wisconsin as of Wednesday and 421 deaths, according to the state health department.
This is a developing story.