May 14, 2020

Wisconsin Supreme Court strikes down extension of state's stay-at-home order

Daily Briefing

    In a closely watched case, Wisconsin's Supreme Court on Wednesday issued a 4-3 decision striking down an extension of the state's stay-at-home order intended to curb the new coronavirus' spread, ruling that the state government overstepped its authority when it implemented the extension without consulting with state legislators.

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    US Covid-19 cases surpass 1.3M, death toll tops 84K

    The ruling comes as U.S. officials as of Thursday morning had reported 1,397,700 cases of Covid-19, the disease caused by the new coronavirus—up from 1,376,700 cases as of Wednesday morning.

    As of Thursday morning, officials also had reported a total of 84,109 U.S. deaths linked to the new coronavirus—up from 82,355 deaths reported as of Wednesday morning.

    Background on the case

    As the number of Covid-19 cases and related deaths continue to rise throughout the United States, the Wisconsin Supreme Court on Wednesday ruled on a high-profile case centered on the state's decision to extend its stay-at-home order during the public health emergency. Other states—including California, Illinois, Kentucky, Michigan, and Pennsylvania—also have faced legal challenges over their stay-at-home orders, but none of those challenges resulted in those states lifting their restrictions.

    In March, Wisconsin Gov. Tony Evers (D) first issued a stay-at-home order in the state that placed restrictions on travel and nonessential businesses, as governors across the United States implemented measures to slow the new coronavirus' spread. The order took effect March 25 and had been scheduled to expire on April 24.

    However, Evers' administration on April 16 extended the order until May 26, without first consulting state legislators. Soon after, Republican legislators in the state filed a lawsuit against Evers and state Department of Health Services (DHS) Secretary Andrea Palm, arguing that a decision to extend the state's stay-at-home order should have been made in conjunction with the state Legislature, in accordance with the state government's rule-making process.

    But an attorney representing Evers' administration in the case argued that a state law allows Wisconsin's DHS "to do whatever is necessary to combat a novel, deadly, communicable disease like the one we're facing today," and therefore did not have to consult with state legislators on the stay-at-home order.

    Wisconsin Supreme Court strikes down state's extension of stay-at-home order

    Wisconsin's Supreme Court ruled in favor of the lawmakers, stating that Palm and Evers' administration had not followed appropriate procedures when establishing the extension of the state's stay-at-home restrictions, and therefore struck down the extension. The justices in their majority opinion wrote that Palm should have followed the state's rule-making process to allow members of the state's Legislature to provide feedback on the extension before implementing it.

    "We do not conclude that Palm was without any power to act in the face of this pandemic," the justices wrote. "However, Palm must follow the law that is applicable to state-wide emergencies." They continued, "[I]n the case of a pandemic, which lasts month after month, the Governor cannot rely on emergency powers indefinitely."

    Though the state Supreme Court's ruling focused on the technical methods Evers' administration used to extend the stay-at-home order, many of the court's justices also indicated that they disagreed with the state's stay-at-home order altogether.

    For example, Justice Daniel Kelly in a concurring opinion wrote, "This comprehensive claim to control virtually every aspect of a person's life is something we normally associate with a prison, not a free society governed by the rule of law."

    The Wisconsin Supreme Court's ruling did not provide a route for the state to seek a stay in the case so Evers' administration could negotiate with state legislators on new restrictions, and the dissenting justices in their opinion wrote that could put Wisconsin residents in danger.

    Justice Ann Walsh Bradley wrote, "The lack of a stay would be particularly breathtaking given the testimony yesterday before Congress by [National Institute of Allergy and Infectious Diseases Director Anthony Fauci,] one of our nation's top infectious disease experts. … He warned against lifting too quickly stay-at-home orders."

    Further, Justice Rebecca Dallet, who also dissented with the majority opinion, said the potential for delays in the state's government rulemaking process is why state law gives the Department of Health Services the authority to implement orders during public health emergencies. "A review of the tedious multi-step process required to enact an emergency rule illustrates why the [state] Legislature authorized DHS to issue statewide orders to control contagion."

    Ruling 'turns the state to chaos'

    Evers' office said the state Supreme Court's ruling appears to lift the Wisconsin stay-at-home order immediately and prompted some businesses to make plans to reopen. For instance, the Tavern League of Wisconsin, which represents bar owners, on Wednesday notified members they could reopen.

    However, some localities took action to keep the stay-at-home-order's restrictions in place. Dane County, for example, swiftly implemented a mandate that incorporates many of the restrictions that had been in place under the statewide order. In addition, city health officials in Milwaukee announced that a city-wide stay-at-home order they had enacted in March is still in effect.

    Evers in an interview said the state Supreme Court's decision "turns the state to chaos." He said, "People will get sick. And the Republicans own the chaos."

    According to the New York Times, the ruling appears to mean Evers' administration will need to negotiate with state legislators to set future restrictions on travel and nonessential businesses.

    State Assembly Speaker Robin Vos (R) and state Senate Majority Leader Scott Fitzgerald (R) in a statement said they are confident nonessential businesses will follow proper guidelines to reopen safely. The lawmakers noted that they would like to work with Evers' administration to develop guidance in case there is a more aggressive resurgence of Covid-19 in the state.

    Separately, Fitzgerald said Republicans are "more than willing to sit down with… [Evers]." He cautioned that, until Evers and state legislators reach an agreement on new restrictions, Wisconsin residents need to use their own judgment to decide whether they want to visit business establishments, churches, and other locations.

    "People understand, if you don't want to go to church, you don't go to church," Fitzgerald said. "If you don't want to go to work, you don't go" (Vigdor, New York Times, 5/13; Itkowitz, Washington Post, 5/13; Richmond, Associated Press, 5/13; New York Times, 5/14).

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