Wisconsin Supreme Court strikes down Wisconsin’s stay-at-home order that closed businesses to limit spread of coronavirus

By Molly Beck and Patrick Marley, Milwaukee Journal Sentinel–

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 sided with Republican lawmakers Wednesday in a decision that curbed the power of Democratic Gov. Tony Evers’ administration 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 ruling immediately lifts all restrictions on businesses and gatherings imposed by the administration’s order but keeps in place the closure of schools until fall. It comes after Evers had already begun lifting some restrictions because the spread of the virus has slowed for now.

More: What’s open and what’s not after Supreme Court ruling ends Evers’ stay-at-home order

More: These Wisconsin counties and cities still have stay-home orders

“Republican legislators convinced four members of the Supreme Court to throw the state into chaos,” Evers told reporters Wednesday evening. “Republicans own that chaos.”

Republicans who brought the lawsuit had asked the justices to side with them but to stay their ruling for about a week so legislators and Evers could work out a new plan to deal with the pandemic.

The justices declined to do that and had their ruling take effect immediately.

To put any new limits in place, the Democratic governor and Republican-controlled Legislature will be forced to work together to deal with the ebbs and flows of the outbreak — something the two sides have rarely been able to achieve before.

The Evers administration will submit a new plan Thursday, even though Republicans had asked them to do so sooner. Republicans have yet to offer one of their own.

With no COVID-19 policies in place, bars, restaurants and concert halls are allowed to reopen — unless local officials implement their own restrictions. That raises the prospect of a patchwork of policies, with rules varying significantly from one county to the next.

RELATED: Milwaukee’s stay-at-home order still in place — bars cannot open and public gatherings prohibited, says Mayor Tom Barrett

The court issued its decision a month after Kelly lost his seat on the court. He will be replaced in August by Dane County Circuit Judge Jill Karofsky, a liberal who beat him by 10 points in the April 7 election.

Senate Majority Leader Scott Fitzgerald of Juneau, who brought the lawsuit with Assembly Speaker Robin Vos of Rochester, said in an interview that it was Evers who “set the table for chaos” by lifting restrictions on retail businesses this week instead of following his own reopening plan that required certain benchmarks to be met first.

“The public started to become skeptical,” he said.

Less than an hour after the ruling was released, the Tavern League of Wisconsin told its members they could greet customers again in their bars and urged them to adopt safety guidelines.

While much of the state can now open up, the court system overseen by the justices will not for the time being. They have suspended jury trials and in-person court hearings because of the dangers of COVID-19 and they held arguments over the stay-at-home order virtually to make sure they stayed away from others.

Lawmaker urges ‘common sense and personal responsibility’

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 was issued a day after a poll showed the public trusts Evers more than the 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 successfully sought will mean the state won’t be able to act quickly.

State Sen. Dan Feyen, R-Fond du Lac, contended in a statement that state officials would develop a reopening plan soon and, in the meantime, citizens should exercise “good old-fashioned common sense and personal responsibility.”

But Fitzgerald and Vos remained mum about what plan they might try to advance for the state.

Fitzgerald said he wants to remain focused on widespread testing and contact tracing to get a good picture of where the virus is spreading, but did not say he wanted new restrictions in place.

“Now we’ve moved beyond ‘plans to open’ to ‘open,'” he said. “We’ve moved from one cabinet member making these decisions for the entire state of Wisconsin to the Legislature working with another branch of government and the individual making these decisions on their own.”

Melissa Baldauff, a spokeswoman for Evers, said in a tweet that Fitzgerald’s desire for testing and tracing “sounds an awful lot like they want the plan we had, they sued us over, and was just gutted by the WI Supreme Court.”

In the majority opinion, Roggensack determined Health Services Secretary Andrea Palm should have issued regulations through a process known as rulemaking, which gives lawmakers veto power over agency policies.

Without legislative review, “an unelected official could create law applicable to all people during the course of COVID-19 and subject people to imprisonment when they disobeyed her order,” the majority wrote.

Blistering dissent calls ruling ‘judicial activism’

Other justices saw it differently.

“This decision will undoubtedly go down as one of the most blatant examples of judicial activism in this court’s history. And it will be Wisconsinites who pay the price,” Dallet wrote in one dissent.

© Associated Press Supreme Court Justice Brian Hagedorn

Hagedorn, who worked as chief legal counsel for former GOP Gov. Scott Walker, wrote in another dissent that the court should not be a referee between the warring parties controlling the other two branches of state government.

“We are a court of law. We are not here to do freewheeling constitutional theory. We are not here to step in and referee every intractable political stalemate,” Hagedorn wrote.”In striking down most of (the order), 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. The legislature may have buyer’s remorse for the breadth of discretion it gave to (the Department of Health Services). But those are the laws it drafted; we must read them faithfully whether we like them or not,” he said.

RELATED: Wisconsin Supreme Court justices pledged not to write new law. Could they do that in coronavirus case?

The first laws providing emergency 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 in addition to implementing policy through rulemaking.

© Michael Sears / Milwaukee Journal Sentinel Justice Rebecca Grassl Bradley listens during a 2018 Wisconsin Supreme Court session.

Justice Rebecca Bradley criticized Hagedorn, typically one of her allies, writing that his argument “contains no constitutional analysis whatsoever, affirmatively rejects the constitution, and subjugates liberty.”

The majority concluded Evers has broader powers during emergencies but stressed that those powers have limits.

“If a forest fire breaks out, there is no time for debate. Action is needed. The governor could declare an emergency and respond accordingly. But in the case of a pandemic, which lasts month after month, the governor cannot rely on emergency powers indefinitely,” Roggensack wrote for the majority.

‘Court will have blood on their hands’

Michael Maistelman, an attorney who at times has represented Evers, said the justices had “legislated from the bench to make up their own laws to satisfy their political ends.”

“This action will inevitably lead to more sickness and more death,” he said in a text message. “The court will have blood on their hands and the people of Wisconsin will not forget.”

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 was 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 it the power to “authorize and implement all emergency measures necessary to control communicable diseases.”

But the majority found Palm also had to follow another state law that requires regulations to be submitted to a legislative committee that can block them.

Wednesday’s ruling also came after public support for the restrictions had waned. A few thousand protested against the governor’s restrictions at rallies across the state in recent weeks, some comparing Evers to a murderous dictator and others complaining the order had nearly ruined their livelihoods.

More than 500,000 people have filed for unemployment benefits after Evers ordered the closure of businesses providing what he has defined as nonessential, such as bars, hair salons and tattoo parlors.

But the orders also still have broad support from the public. A poll released Tuesday by 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.

Support and opposition has largely fallen along partisan lines.

The decision was not a surprise after Evers and his administration came under fire last week by conservative justices during oral arguments.

“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 Bradley, who later questioned whether the administration could use the same power to order people into centers akin to the U.S. government’s treatment of Japanese Americans during World War II.

Evers and his attorney said the lawsuit would upend life-saving measures and needlessly put more residents’ health — and their lives — at risk.

“Everyone understands such an order would be absolutely devastating and extraordinarily unwise,” Assistant Attorney General Colin Roth said during arguments. “If safer-at-home (order) is enjoined with nothing to replace it, and people pour out into the streets, then the disease will spread like wildfire and we’ll be back in a terrible situation with an out-of-control virus with no weapon to fight it — no treatments, no vaccine, nothing.”

RELATED: Bice: Supreme Court Chief Justice Roggensack blasted as ‘elitist,’ ‘out of touch’ for meatpacking remark

Contact Molly Beck at molly.beck@jrn.com. Follow her on Twitter at @MollyBeck.

This article originally appeared on Milwaukee Journal Sentinel: Wisconsin Supreme Court strikes down Wisconsin’s stay-at-home order that closed businesses to limit spread of coronavirus