MADISON, Wis. – The Wisconsin Supreme Court has struck down Gov. Tony Evers’ order shutting down daily life to limit the spread of coronavirus – marking the first time a statewide order of its kind has been knocked down by a court of last resort.
The state’s highest court, which is controlled by conservatives, sided with Republican lawmakers Wednesday in a decision that curbed the Evers administration’s power to act unilaterally during public health emergencies.
The 4-3 decision was written by four of the court’s conservatives – Chief Justice Patience Roggensack and Justices Rebecca Bradley, Daniel Kelly and Annette Ziegler.
The court’s fifth conservative, Brian Hagedorn, wrote a dissent joined by the court’s two liberals, Ann Walsh Bradley and Rebecca Dallet. (The Bradleys are not related.)
The ruling, for now, immediately throws out the administration’s tool to control the disease for which there is no vaccine and comes at a time when Evers has already begun lifting some restrictions as the spread of the virus slows down for now.
It will force the Democratic governor and Republican-controlled Legislature to work together on the state’s response to the ebbs and flows of the outbreak – a dynamic the two sides have rarely been able to achieve before.
With no COVID-19 policies in place, bars, restaurants and concert halls are allowed to reopen – unless local officials put in their own restrictions. That raises the prospect of a patchwork of policies, with rules varying significantly from one county to the next.
In the majority opinion, Roggesack determined Department of Health Services Secretary Andrea Palm should have issued such restrictions through a process known as rule making, which gives lawmakers veto power over agency policies.
“Palm’s Emergency Order 28 is declared unlawful, invalid, and unenforceable,” Roggensack wrote for the majority.
GOP lawmakers who brought the lawsuit have said the legal challenge was necessary to get a seat at the table where Evers and state health officials make decisions about how to respond to the outbreak, which has killed 418 people in the state in two months.
The ruling giving them the ability to block the Evers administration during the pandemic comes a day after a new statewide poll showed the public trusts Evers more than the Republican-led Legislature on when to begin reopening and relaxing restrictions related to the outbreak.
Evers has maintained his administration needs to be nimble and is relying on health experts to guide his decisions. He has said the procedure GOP lawmakers want will mean the state won’t be able to act quickly.
Hagedorn, who worked as chief legal counsel for former GOP Gov. Scott Walker, wrote in one of the court’s two dissents that the administration did not need permission to order such restrictions.
“In striking down most of Order 28, this court has strayed from its charge and turned this case into something quite different than the case brought to us,” Hagedorn wrote. “To make matters worse, it has failed to provide almost any guidance for what the relevant laws mean, and how our state is to govern through this crisis moving forward. The legislature may have buyer’s remorse for the breadth of discretion it gave to DHS in (state law). But those are the laws it drafted; we must read them faithfully whether we like them or not.”
Conservative Justice Rebecca Bradley criticized Hagedorn, typically an ally to Bradley, saying his argument “contains no constitutional analysis whatsoever, affirmatively rejects the constitution, and subjugates liberty.”
Wisconsin was one of 43 states to be locked down by its governor and as of Wednesday, it was one of 11 with such restrictions still in place.
At the heart of the lawsuit is a state law governing communicable diseases that says, “The department (of Health Services) may close schools and forbid public gatherings in schools, churches, and other places to control outbreaks and epidemics,” and gives the department the power to “authorize and implement all emergency measures necessary to control communicable diseases.”
The first laws providing powers to government officials were crafted in 1887, about 30 years before the 1918 flu pandemic that epidemiologists have said is similar to this year’s coronavirus outbreak.
In 1981, amid the HIV and AIDS epidemic, the state Legislature gave the power to DHS to issue orders – instead of using rulemaking.
Wednesday’s ruling came after a few thousand people protested against the governor’s restrictions at rallies across the state, some comparing Evers with a murderous dictator and others complaining the order had nearly ruined their livelihoods.
More than 500,000 people filed for unemployment since Evers ordered the closure of businesses providing what the state has defined as non-essential services, like restaurants, hair salons, and tattoo parlors.
But the orders also had broad support from the public. A poll released Tuesday by the Marquette University Law School showed 69% of voters surveyed believed Evers’ actions were appropriate, though that support had decreased since March when more than 80% supported the restrictions.
In March, 83% of Republicans said closures were appropriate, compared with 49% in the new poll.
Among Democrats, support slipped from 95% in March to 90% in the current poll while among independents support slipped from 79% to 69%.
The public also trusted Evers more than the Republican-led Legislature on when to begin reopening and relaxing restrictions related to the outbreak, according to the poll.
