Wisconsin Supreme Court issues ruling in ‘Safer at Home’ challenge

Capitol

MADISON, Wis. — The Wisconsin Supreme Court has made its decision in a case challenging the legality of the extension of the state’s Safer at Home order.

The state Legislature filed the lawsuit in April, arguing the Secretary-designee at the Department of Health Services, who published the order, exceeded her authority by doing so.

The court struck down the stay-at-home restrictions and ruled that Gov. Tony Evers’ administration overstepped its authority when it extended the order until May 26, deeming it “unlawful, invalid and unenforceable.”

The 4-3 ruling means the state is essentially reopened ahead of the May 26 expiration date of Evers’ order. It lifts caps on the size of gatherings, allowing people to travel as they please and allowing shuttered businesses to reopen, including bars and restaurants.

The ruling marks another defeat for Evers as Republicans continue to chip away at the Democratic governor’s authority.

Lt. Gov. Mandela Barnes showed disapproval of the decision on social media, stating he was “disappointed but not surprised.”

Evers responded to the ruling with a similar sentiment.

“We cannot let today’s ruling undo all the work we have done and all the sacrifices Wisconsinites have made over these past few months,” Evers said in a statement. “We need everyone to continue doing their part to keep our families, our neighbors and our communities safe by continuing to stay safer at home, practice social distancing and limit travel, because folks, deadly viruses don’t wait around for politicians and bureaucrats to settle their differences or promulgate rules.”

Speaker Robin Vos and Senate Majority Leader Scott Fitzgerald released a statement of their own Wednesday night, to which they said Wisconsinites “are up to the task of fighting the virus as we enter a new phase.”

We would urge the Evers administration to work with us to begin promulgating rules that would provide clear guidance in case COVID-19 reoccurs in a more aggressive way,” Vos and Fitzgerald said.

Soon after the ruling was made, Dane County officials announced that local health officials will be issuing a local “safer at home” order for Madison and Dane County.

“This is what happens when you insert politics into public health,” Dane County Executive Joe Parisi said during a news conference Wednesday night. “Pretending this virus doesn’t exist doesn’t make it go away. What’s going to happen is that people will die.”

Wisconsin Manufacturers and Commerce said in a statement that they “commend the state Supreme Court for upholding the rule of law and understanding that coequal branches of government must work together, especially in times of crisis.”

Today’s decision is a win for the state’s economy, countless businesses and hundreds of thousands of unemployed Wisconsinites who are ready to get back to work,” said WMC CEO Kurt Bauer. “WMC looks forward to working collaboratively with the legislature and Gov. Evers to ensure the state begins its economic recovery in a safe and sustainable way so we can protect both lives and livelihoods.”

The Wisconsin Economic Development Corporation announced in a news release that it has come out with a “Guidance Memo” taverns, restaurants and supper clubs can use for reopening.

“At this time May 26 is the opening date for all taverns, restaurants and supper clubs,” WEDC said in a statement. “It is possible that the Governor may issue additional orders with capacity restrictions and other social distancing practices or any other orders he deems necessary.”

The state Supreme Court heard oral arguments for the case on May 5. The Department of Justice, which represented Palm, said state statutes protect what she did, pointing to laws drafted in the early 1900s that give the department broad authority to combat communicable diseases during a public health emergency.

During the arguments, justices questioned what limits the statutes put in place to make sure the authority doesn’t infringe on constitutional rights.

“Isn’t it the very definition of tyranny for one person to order people to be imprisoned for going to work among other ordinarily lawful activities?” asked Justice Rebecca Bradley.

Assistant Attorney General Colin Roth said he understood why Bradley might be uncomfortable with that, but he said the way the statute is written allows DHS to do whatever is necessary to combat communicable diseases.

“For over a century courts have recognized in the context of infectious diseases, it is practically impossible for the Legislature to predict exactly what is necessary,” Roth said.

Ryan Walsh, the Legislature’s attorney, argued an administrative agency shouldn’t be able to create this broad of an order, which he said exceeds even the governor’s powers.

“This case is not about whether a lock down is a good idea,” Walsh said. “This case raises instead a basic issue of administrative law.”