Wisconsin Courts Overturn Governor’s Closure Order

Pandemonium during a pandemic.

Milwaukee Journal-Sentinel (“Wisconsin Supreme Court strikes down Wisconsin’s stay-at-home order that closed businesses to limit spread of coronavirus“):

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.

By “immediately” they mean immediately. As in, no time for businesses to prepare, much less guidelines to be issued.

WaPo (“After Wisconsin court ruling, crowds liberated and thirsty descend on bars. ‘We’re the Wild West,’ Gov. Tony Evers says.“):

On Wednesday night in the heart of downtown Platteville, Wis., just hours after the Wisconsin Supreme Court threw out the state’s stay-at-home order, Nick’s on 2nd was packed wall to wall, standing room only.

It was sometime after 10 p.m. when “Long Cool Woman in a Black Dress” by the Hollies came over the sound system and a bartender took out his camera. In a Twitter broadcast, he surveyed the room of maskless patrons crammed together, partying like it was 2019. A few were pounding on the bar to the beat. Some were clapping their hands in the air and some were fist-pumping, a scene so joyous they could have been celebrating the end of the worst pandemic in a century.

Instead, as Wisconsin Gov. Tony Evers (D) knew, they were just celebrating the apparent end of his power over them — at least for now.

“We’re the Wild West,” Evers told MSNBC’s Ali Velshi on Wednesday night, reacting to the state Supreme Court’s ruling and the scenes of people partying in bars all across Wisconsin. “There are no restrictions at all across the state of Wisconsin. … So at this point in time … there is nothing that’s compelling people to do anything other than having chaos here.”

Chaos it was.

Right after the Supreme Court’s conservative majority issued a 4-to-3 ruling, invalidating the extension of the stay-at-home order issued by Evers’s appointed state health chief, the Tavern League of Wisconsin instructed its members to feel free to “OPEN IMMEDIATELY!”

With Evers’s statewide orders kaput, local health authorities scrambled to issue or extend citywide or countywide stay-at-home orders, creating a hodgepodge of rules and regulations all across the state that are bound to cause confusion, not to mention some traffic across county lines. It’s a situation unlike any in the United States as the pandemic rages on. But most of all, Evers feared that the court’s order would cause the one thing he was trying to prevent: more death.

That a governor is better equipped to make public policy on such matters than the court system would seem obvious.

The decision from the court is 161 pages and I haven’t and almost certainly won’t read it in full. But the Chief Justice’s opinion looks to be one of process. The Intro lays that out quite succinctly:

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. Palm says that failure to obey
Order 28 subjects the transgressor to imprisonment for 30 days, a
$250 fine or both. This case is not about Governor Tony Evers’
Emergency Order or the powers of the Governor.
[emphasis mine -jj]

Accordingly, we review the Wisconsin Legislature’s Emergency Petition for Original Action that asserts: (1) Palm as Secretary-designee of the Department of Health Services (DHS), broke the law when she issued Emergency Order 28 after failing to follow emergency rule procedures required under Wis. Stat. § 227.24 (2017-18),1 and (2) even if rulemaking were not required,

Palm exceeded her authority by ordering everyone to stay home,2
closing all “non-essential” businesses,3 prohibiting private
gatherings of any number of people who are not part of a single
household,4 and forbidding all “non-essential” travel.5 Palm
responded that Emergency Order 28 is not a rule. Rather, it is an
Order, fully authorized by the powers the Legislature assigned to
DHS under Wis. Stat. § 252.02.

We conclude that Emergency Order 28 is a rule under the
controlling precedent of this court, Citizens for Sensible Zoning,
Inc. v. DNR, 90 Wis. 2d 804, 280 N.W.2d 702 (1979), and therefore
is subject to statutory emergency rulemaking procedures
established by the Legislature.

The dissent, not shockingly, takes a different view. It’s opening paragraph:

Today, a majority of this court does the Legislature’s bidding by striking the entirety of Emergency Order 28, “Safer at Home Order,” yet confusingly, in a footnote, upholding Section 4. a. The majority
reaches its conclusion by torturing the plain language of Wis.
Stat. § 252.02 (2017-18)1 and completely disregarding the longstanding, broad statutory powers the Legislature itself granted to the Department of Health Services (DHS) to control COVID-19, a
novel contagion.2 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.

Now, I am not a lawyer nor a Wisconsinite and have no opinion on how one should interpret Wis. Stat. § 252.02.

Still, this ruling comes off as partisan hackery. Again, I have no view nor desire to develop on on the statutory power of the unelected Secretary-designee of the Department of Health Services of Wisconsin. But any prudent court, even one coming to the conclusion that it was lacking, would have granted at least a short time for the state and local authorities to develop an alternative response given the extraordinary stakes.

It’s also not clear to me, if the Governor has the authority to issue a stay-at-home order and the unelected Secretary-designee of the Department of Health Services does not, then why doesn’t the Governor simply re-issue the damn order in his name?

In the meantime, were I a Wisconsinite, I’d stay the hell out of bars for the time being.

FILED UNDER: COVID-19, Law and the Courts
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. CSK says:

    Given how much cheaper and safer (even before the pandemic) and convenient it is to drink at home, I think I’ll continue to do so.

    9
  2. inhumans99 says:

    This is the same WI that forced people to risk getting sick to vote, correct?

    When my dad was in MN for several years my mom would visit him and they loved how easy it was to drive over to WI for the food (cheese!), to have some fun (I think they also have a well-known casino(s) that folks enjoy) and just enjoy the beauty of the state, and they never gave me the impression that Wisconsinites are a pack of fools, but hey…the ignorant want to be ignorant and it is the rest of the state of WI that will pay the price.

    I am starting to think it was not a fluke that WI and other states in her proximity went for President Trump considering how WI has made the news during the past few months, if folks understand what I am trying to say here.

    5
  3. Mister Bluster says:

    Apparently it is still legal to operate a snowmobile while you are impaired on alcohol in Wisconsin.
    This does not reflect well on the intelligence of Cheeseheads.

    DNR’s Snowmobiling Safety Recommendations
    Zero Alcohol. Drinking alcohol before snowmobiling or during your ride slows your reactions, impairs your judgment, and is a leading contributor to snowmobiling deaths.
    Source

    2
  4. An Interested Party says:

    Wisconsin will now serve as the perfect test case of what happens during a pandemic when lots of people ignore said pandemic…will the hospitals of Wisconsin have enough room for all the people who may get sick? And if a lot of people don’t get sick, will politicians in other states use that as an excuse to completely open up their states? As the governor said, the Wild West…

    4
  5. DrDaveT says:

    But the Chief Justice’s opinion looks to be one of process.

    If the governor has the power but got the process wrong, he could tomorrow issue an actual Order, using the process the WISC says he should have used, and then it would all be legal and would stick. Right?

    7
  6. Jay L Gischer says:

    I wonder if the Governor wants to duck responsibility for the stay-at-home order, and that’s what this is about? Republican pols want him to own it, so they can run against it in the fall? So they are trying to force his hand? And in this context, many judges are willing to be “activist”, since they know the Governor can issue the order.

    It’s sort of a political classic of trying to have it both ways. But maybe too cynical and mind-readerish?

    But packing yourself into a bar for several hours is, well, a recipe for disaster.

    2
  7. inhumans99 says:

    @An Interested Party:

    Yup, folks wondered what would happen if some states pulled a Sweden and put up with a very high death rate for a period of time due to basically little to no social distancing requirements that recently peaked but looks to be on sharp decline compared to the run up to the peak.

    It may be the case that over a month of social distancing is enough to keep any flare-ups from becoming like the flare ups in Louisiana several weeks back that quickly engulfed entire communities but keep in mind that the end results of this experiment by the GOP controlled legislature of WI might become the first of many bricks in the wall that all build up to President Trump being re-elected.

    He is such a useful tool for the GOP Senate that I no longer believe that they would get tired of dealing with him for another 4 years…they will just grit their teeth and get through the daily tantrums of President Trump as quickly as they can and continue to enjoy the unfettered access they have to instruments to turn the U.S. into a Theocracy via the courts (it makes my skin crawl that many in the South want to emulate the Taliban and use religion to control the majority of the U.S. population, and I say this as a Catholic).

    I am starting to understand why so many Republicans claim to love President Trump, I may not like it but I find myself starting to grok why he is such a beloved president in the eyes of his base and the Senate.

    4
  8. drj says:

    It’s also not clear to me, if the Governor has the authority to issue a stay-at-home order and the unelected Secretary-designee of the Department of Health Services does not, then why doesn’t the Governor simply re-issue the damn order in his name?

    From the Milwaukee Journal Sentinel:

    The case centers on how much power Evers has during a global health crisis. State law gives governors broader authority when they declare a public health emergency, but that authority expires after 60 days unless the Legislature grants an extension.

    Evers declared a public health emergency March 12, and that order expires May 11.

    Separately, his health services secretary, Andrea Palm, issued a stay-at-home order at Evers’ direction that took effect March 25. In April, Palm extended that order until May 26.

    Evers and Palm argue she is able to issue an order that lasts longer than Evers’ original emergency declaration because of a state law that gives the Department of Health Services wide latitude to fight public health threats.

    More from Vox:

    Nevertheless, the Court’s Republican majority concludes that Palm’s stay-at-home order exceeds her power to issue mere orders. Under the Court’s decision, any order that applies to a class of people that “is described in general terms,” and that can be expanded to more individuals, must be issued as a rule. That means that new efforts to fight the coronavirus are likely to be delayed for weeks or more.

    There are several problems with the Court’s conclusion, but the biggest one is that it is inconsistent with the text of the state’s public health law. That law gives the health department the power to “promulgate and enforce rules or issue orders for guarding against the introduction of any communicable disease into the state” or “for the control and suppression of communicable diseases,” and it provides that “any rule or order may be made applicable to the whole or any specified part of the state.”

    Thus, the statute explicitly states that the health department may issue an “order” and not just a “rule” that is applicable to the entire state.

    In short, the Wisconsin Supreme Court decided to take away a power from the DoH that the legislature had granted in 1982 because the state government is now run by Democrats.

    Additional fun facts:

    * A lame duck Republican judge who recently lost his re-election bid cast the deciding vote.

    * The case was brought by a legislature that is so gerrymandered that 53% of the votes netted Democrats 36% of the seats.

    * That very same wholly unrepresentative legislature now gets to decide how the state government will respond to the ongoing Covid-19 pandemic.

    Bonus fun fact:

    * The Republican Chief Justice is a total piece of shit:

    During oral arguments last week, when a lawyer defending the stay-at-home order pointed out that there was recently an outbreak of coronavirus in Brown County, Wisconsin, Chief Justice Patience Roggensack dismissed the significance of that outbreak because it primarily impacted factory workers.

    “These were due to the meatpacking, though,” Roggensack said. “That’s where Brown County got the flare. It wasn’t just the regular folks in Brown County.”

    13
  9. drj says:

    But the Chief Justice’s opinion looks to be one of process.

    Yes, simply a narrow, technical ruling. /s

    2
  10. Barry says:

    @inhumans99: “This is the same WI that forced people to risk getting sick to vote, correct?”

    Both the WI and Federal SCOTUS (SCOTI?) poo-pooed the dangers of COVID for the election, while conducting their business on Zoom.

    7
  11. Barry says:

    @drj: “Yes, simply a narrow, technical ruling. /s”

    ‘Balls and Strikes’, one might say.

    3
  12. 95 South says:

    @Barry: For the fourteen days after the primary, the rate of new cases was flat.

  13. Teve says:

    @drj:

    The case was brought by a legislature that is so gerrymandered that 53% of the votes netted Democrats 36% of the seats.

    JFC.

    2
  14. Michael Reynolds says:

    @Teve:

    For the fourteen days after the primary, the rate of new cases was flat.

    And there was that time a dude jumped off the Golden Gate Bridge and was fine.

    4
  15. mister bluster says:

    test

  16. Mister Bluster says:

    Looking at this chart we see 138 new cases in Wisconsin on Election Day. Two weeks later, April 21, 121 new cases were reported. During that two week span a low of 87 cases was reported on April 13 and a high of 183 cases were reported on April 10.
    Since April 21 daily reported cases have shot up to a high of 460 on May 1 and dropped to 291 May 13.
    There is nothing “flat” about any of this.

    11
  17. Gustopher says:

    By “immediately” they mean immediately. As in, no time for businesses to prepare, much less guidelines to be issued.

    While I can understand the argument that emergency orders cannot be used forever, and would actually support that, the right way to dismantle that would be to give the state 30 days to get their act together. Or some reasonable time period.

    Well, good luck Wisconsin, you’re going to lead the nation in something — either Covid deaths or the discovery that this virus really is overblown. I expect the former, but would love to be wrong.

    4
  18. Raoul says:

    Lawyers Guns and Money has a pretty good take as to why this a legally unfounded decision. Let’s be honest, the GOP does not believe in the rule of law. The greater concern for all of us is the continual spread of the illness.

    8
  19. 95 South says:

    @Mister Bluster: This isn’t a political question, it’s data analysis. For those 14 days there’s a nearly flat trend line and low variance.

    1
  20. Modulo Myself says:

    “These were due to the meatpacking, though,” Roggensack said. “That’s where Brown County got the flare. It wasn’t just the regular folks in Brown County.”

    These people really do believe that a bunch of white yahoos gathering in a bleak bar is different than a meatpacking plant. The good thing is that most people are not this stupid. For most people, normality is not central Republican planning telling consumers to do what they were doing on 2/1/20. It’s about getting outside and keeping your kids sane and surviving. It’s not about crowding oneself into some horrifying place with bad TV and shitty beer and maybe not getting Corona or forcing the staff to get it.

    2
  21. Mister Bluster says:

    @95 South:..nearly flat trend line…
    First it was flat. “For the fourteen days after the primary, the rate of new cases was flat.”
    Now it is “nearly flat”.

    I’ll tell you what’s flat, the six sides of a blockhead.

    6
  22. Kathy says:

    Recent history matters, too. Remember when El PITO pequeño owned the government shutdown?

    Well, now the GOP(*) is owning the premature lifting of the lock down. I hope they, and the world, won’t have cauwe to regret their decision, but I don’t expect it.

    (*) Definitely there’s nothing Grand left of the Grand Old Party. It certainly is old, and getting older as the young shirk away from it. But ti’s also not so much a party as a cult, but I guess it qualifies as some kind of party still.

    So how about renaming it “TP” The Toilet Party.

    I’m sorry. Did I say “toilet”? I meant “Trump”.

    There seems to be no difference, but there is. A toilet gets rid of human waste. trump produces it in great quantities.

    3
  23. de stijl says:

    @Mister Bluster:

    What is the infection to symptomatic average span? Roughly ten days to two weeks last I heard.

    1
  24. Mu Yixiao says:

    Just a note:

    Many counties (including Dane County, where the Capital is) remain closed under county-wide orders. Brown County (where that meat-packing plant had a flare up) extended their lockdown another week. Both Madison and Milwaukee (along with at least 7 others) have local orders that preclude businesses from opening.

    2
  25. 95 South says:

    @Mister Bluster: I calculated the mean of the series at 145.3, with a standard deviation of 24.1. I did a linear regression against days and found a best-fit line with a slope of -.057.

  26. SC_Birdflyte says:

    How ironic. Having lived in Wisconsin in the mid-80s, I can remember a time when Wisconsinites took pride in the legacy of “Fighting Bob” LaFollette and his progressive accomplishments. But then I also remember that Wisconsin was the home state of “Tailgunner Joe.”

    1
  27. 95 South says:

    @95 South: A thumbs down vote for what, my rounding?

  28. 95 South says:

    @de stijl: CDC says 2-14 days.

  29. Barry says:

    @95 South: “For the fourteen days after the primary, the rate of new cases was flat.”

    Your confession is accepted.

  30. 95 South says:

    Do you want me to say that the election resulted in a decline in the number of cases? I won’t, because it would represent a decrease of less than one whole person over 14 days. It’s statistically insignificant. Also I don’t believe the election reduced the number of cases. You don’t either, at least if you’re subscribing to the “Republican election kills people” narrative.

  31. Mu Yixiao says:

    By “immediately” they mean immediately. As in, no time for businesses to prepare, much less guidelines to be issued.

    I’m quite confused by this comment.

    Businesses have all the time they need to prepare. Nobody is required to open. If they want to spend a week or two (or a month or two) figuring out how to re-open, they can.

    As for “no guidelines”: The FDA has had guidelines for F&B posted since April 21st. They were the 3rd result when I googled “covid 19 guidelines for restaurants” (#1 & #2 were guidelines from the National Restaurant Association).

    Also: suggested reading about county-specific orders and how businesses are dealing with the the ability to reopen (Appleton Post Crescent).

    1