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Wisconsin Supreme Court Strikes Down ‘Safer At Home’ Order

Evers' Administration Would Need Approval Of Legislature's Rulemaking Committee To Issue New Stay-At-Home Orders

The Wisconsin capitol building
jpellgen (CC-BY-NC-ND)

The state Supreme Court has overturned Wisconsin’s stay-at-home order, striking down one of the primary tools Gov. Tony Evers’ administration has used in its effort to slow the spread of COVID-19.

Justices ruled 4-3 Wednesday that the Evers’ administration exceeded its authority when state Department of Health Services Secretary Andrea Palm issued the “Safer at Home” extension that was scheduled to run until Tuesday, May 26.

“This case is about the assertion of power by one unelected official, Andrea Palm, and her order to all people within Wisconsin to remain in their homes, not to travel and to close all businesses that she declares are not ‘essential’ in Emergency Order 28,” began the majority opinion written by conservative Chief Justice Patience Roggensack.

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“Palm’s Emergency Order … is declared unlawful, invalid, and unenforceable,” the opinion ended.

The ruling does not mean life will return to normal in Wisconsin. The court’s ruling means it now falls to officials in the state’s 72 counties and in local municipalities to manage their communities’ response to COVID-19, effectively creating a patchwork of different rules and policies across the state.

Almost immediately, Dane County issued its own stay-at-home order that was nearly identical to the state’s, and Milwaukee Mayor Tom Barrett said his city would operate under its own set of public health restrictions.

And while the stay-at-home order was declared unlawful by the court’s majority, Roggensack wrote, without explanation, that schools would remain closed.

The legal challenge to the stay-at-home order was brought by Republican state lawmakers. Four members of the court’s 5-2 conservative majority sided with Republicans, while conservative Justice Brian Hagedorn joined the court’s two liberal justices in supporting the Evers administration.

Hagedorn’s dissent was especially critical of the majority opinion, writing that Palm had legally exercised powers granted to her by a previous Legislature. He also wrote that the court’s decision set a dangerous precedent that could limit the executive branch’s power to carry out basic duties of government.

“We are a court of law. We are not here to do freewheeling constitutional theory,” Hagedorn wrote. “This court has strayed from its charge and turned this case into something quite different than the case brought to us. 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.”

Under the court’s ruling, Evers’ administration could issue new stay-at-home orders, but it would need the approval of the Legislature’s rulemaking committee, which is run by Republicans. That effectively gives Republicans veto power over any future stay-at-home restrictions.

Evers told reporters Wednesday night that his administration would begin the rulemaking process Thursday morning, but cautioned that the process was a slow one. He said he was disappointed in the court, and in Republicans.

“Today, Republican legislators convinced four members of the Supreme Court to throw the state in chaos,” Evers said. “Republicans own that chaos.”

Republicans originally asked the court for a six-day stay which would have kept the current “Safer at Home” order in place while a new one is negotiated to replace it. But the court instead decided to strike down the order effective immediately.

For weeks, Republicans have said they want the state to adopt a regional approach, with more restrictions in places with higher concentrations of COVID-19 cases and fewer restrictions where cases are comparatively rare.

But in a written statement issued Wednesday night, Assembly Speaker Robin Vos, R-Rochester, and Senate Majority Leader Scott Fitzgerald, R-Juneau, suggested they were comfortable without any new order from the state to replace the one that the court struck down.

“Now that the decision has been rendered, we are confident Wisconsin citizens are up to the task of fighting the virus as we enter a new phase,” said Vos and Fitzgerald. “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.”

Vos and Fitzgerald urged Evers to work on rules to provide guidance “in case COVID-19 reoccurs in a more aggressive way,” suggesting that they did not think that time was now.

Wisconsin has seen a steady decline in its percentage of positive COVID-19 tests over the past two weeks, enough to satisfy several of the Evers administration’s own guidelines for a more gradual reopening.

“We were in a good place,” Evers told reporters. “We are no longer in a good place.”