By BILL RUTHHART CHICAGO TRIBUNE | MAY 13, 2020
Conservative justices on the Wisconsin Supreme Court struck down Democratic Gov. Tony Evers’ monthslong stay-at-home order on Wednesday, leaving the state with no public health restrictions in the midst of the coronavirus pandemic.
The 4-3 decision marked the first time a state’s high court has overturned a governor’s stay-at-home order amid the COVID-19 crisis, as a majority of Wisconsin’s justices sided with Republican legislative leaders who argued the governor’s administration had overstepped its legal authority.
The court rejected the lawmakers’ request for a six-day stay to allow the GOP lawmakers and the governor to work out new rules, saying the two parties had two weeks since it took up the case to work "in good faith to establish a lawful rule that addresses COVID-19 and its devastating effects on Wisconsin.”
But as of late Wednesday night, neither the governor nor legislative leaders had offered an order or rules to serve as a replacement. That leaves Wisconsin as the only state in the nation without a single protective measure in place to combat the coronavirus, Evers’ office said.
In an interview, the governor said he would work with Republicans to write new rules, but said the “arcane process” could take weeks, and by the time anything is agreed upon, “the ship may have sailed” in containing the contagious virus.
“Republican legislators convinced four members of the Supreme Court to throw the state into chaos," Evers told the Tribune. “They have no plan. People are going to get sick, and those Republicans own this chaos.”
The top Republican lawmakers who brought the suit, state Assembly Speaker Robin Vos and state Senate Majority Leader Scott Fitzgerald, issued a statement applauding the decision. They also noted that Evers had declined two weeks ago to start negotiating new COVID-19 rules and instead wanted to wait for the court decision.
“We are confident Wisconsin citizens are up to the task of fighting the virus as we enter a new phase,” the lawmakers said. “This ruling allows people to once again gather with their loved ones or visit their places of worship without the fear of violating a state order.”
In the lawsuit, Republicans contended that Evers and Department of Health Services Secretary Andrea Palm could not continue to extend stay-at-home orders indefinitely without seeking approval from the state legislature. The legislative leaders took the matter straight to the state Supreme Court after Evers’ “safer-at-home” order was extended until May 26.
Attorneys for Evers contended that the governor and the state’s top health official acted under clear emergency powers allowed for under state law.
After the justices heard arguments in the case during an online video conference last week, they ruled against the governor, a decision that effectively places any COVID-19 public health restrictions in the purview of a rule-making legislative committee controlled by Republicans that would hold veto power over directives issued by Evers and his administration.
In writing the majority opinion, Chief Justice Patience Roggensack did not weigh in on whether Evers and his administration’s actions overstepped his constitutional authority. Instead, the court ruled more narrowly that Palm’s order “confining all people to their homes, forbidding travel and closing businesses exceeded the statutory authority” granted by law to the state’s health director during an emergency. Roggensack was joined by fellow conservative Justices Annette Ziegler, Rebecca Bradley and Daniel Kelly.
Bradley and Kelly wrote separate concurring opinions that went a step further, contending Evers’ health director had overstepped constitutional boundaries.
“Where in the constitution did the people of Wisconsin confer authority on a single, unelected Cabinet secretary to compel almost 6 million people to stay at home and close their businesses and face imprisonment if they don’t comply, with no input from the legislature, without the consent of the people?” Bradley asked during oral arguments last week. “Isn’t it the very definition of tyranny for one person to order people for being imprisoned for going to work, among other ordinarily lawful activities?”
However, fellow conservative Justice Brian Hagedorn wrote in his own dissenting opinion that “the people have not empowered this court to step in and impose our wisdom on proper governance during this pandemic; they left that to the legislative and executive branches.”
“We are a court of law," Hagedorn warned. “We are not here to do freewheeling constitutional theory. We are not here to step in and referee every intractable political stalemate.”
Hagedorn was joined in dissent by liberal Justices Rebecca Dallet and Ann Bradley, who slammed the court’s decision not to issue a stay to give lawmakers and the governor time to hash out rules to replace the overturned stay-at-home order.
“The lack of a stay would be particularly breathtaking given the testimony yesterday before Congress by one of our nation’s top infectious disease experts, Dr. Anthony Fauci,” Ann Bradley wrote. “He warned against lifting too quickly stay-at-home orders.”
Emphasizing the immediacy of the decision, the Tavern League of Wisconsin on Wednesday night encouraged its members to reopen Thursday under guidelines the Wisconsin Economic Development Corporation wrote for when bars and restaurants ultimately would be allowed to reopen. Those include leaving two empty stools in between parties, limiting tables to six guests, spacing tables 6 feet apart and requiring employees to wear face masks.
“The Tavern League of Wisconsin emailed all their members tonight saying, ‘Open up guys, it’s time to party,’” Evers said, adding that the “ship has sailed” on containing the virus with any new rules.
Vos and Fitzgerald, however, insisted businesses following the state safety recommendations is the right approach.
“We urge our fellow small business owners to utilize the suggestions as a safe and effective way to open up our state,” they said. “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. This order does not promote people to act in a way that they believe endangers their health.”
Vos and Fitzgerald repeatedly contended that Evers’ order went too far, but have not offered any legislation or plan of their own on how the state should balance reopening the state’s economy and keeping Wisconsinites safe.
In their statement Wednesday night, the lawmakers said they would start working with Evers on rules “in case COVID-19 reoccurs in a more aggressive way,” implying that no such rules might be instituted right away to replace the stay-at-home order.
In the wake of the court ruling, both the Republican leaders and the governor pointed to a new Marquette University Law poll to bolster their positions.
Vos and Fitzgerald noted that the poll found that 77% of Wisconsin voters said they would feel comfortable visiting a friend or family member’s home. Evers pointed to the fact that 64% of voters approved of his handling of the virus.
That approval rating for the governor’s handling of the pandemic, however, was down from 76% in March. But like many governors, public support for Evers far outpaces the approval of President Donald Trump’s handling of the pandemic. The poll, released Tuesday, found 44% of Wisconsin voters approved of Trump’s response to COVID-19, down from 51% in March.
The new poll found that 53% of Wisconsin voters said they trusted Evers more to properly respond to the pandemic compared to 33% who said they trusted the state legislature more.
The legal battle is the latest episode in a long-running and bitter political divide between the Republicans and Democrats in a crucial swing state in the fall presidential election. Trump narrowly won Wisconsin four years ago.
Fitzgerald and Vos won a similar decision before the state Supreme Court earlier this year that overturned Evers’ effort to delay the April 13 election and mail all voters a ballot amid the coronavirus pandemic. The ruling required in-person voting to be held as planned, despite a massive shortage of poll workers and a dramatic reduction in the number of voting locations.
Evers issued his initial stay-at-home order on March 18, which closed schools and shuttered nonessential businesses. On April 16, the governor extended the order until May 26, but he allowed for elective surgeries to resume, and state parks and golf courses to open.
At the time the Republican lawmakers sued, Wisconsin’s COVID-19 cases were still on the rise, though they now have started to level off. All told, 10,611 people have been sickened by the virus in the state and 418 have died.
As conditions have improved in recent days, Evers also has begun to loosen restrictions under his “Badger Bounce Back Plan” to gradually reopen the state’s economy. That included an announcement this week that retail stores could reopen with a limit of five customers at a time.
The Marquette poll found that 69% of voters thought Evers’ stay-at-home order to close businesses and schools was appropriate compared with 26% who said they were an overreaction. That marked a drop in support since March, when 86% said the governor’s actions were appropriate and only 10% said they were an overreaction.
Statewide in Wisconsin, the percentage of positive COVID-19 cases, or positivity rate, has dropped to less than 4%. By contrast, the most recent positivity rate released for Illinois is 17% overall and 20.7% in northeast Illinois.
Asked whether he was worried about Illinois residents from Chicago and the suburbs flocking over the state line to patronize Wisconsin businesses, Evers could hardly contain his disgust.
“I guess the Tavern League would like that. They’d like as many damn people in their bars as possible,” he said. “It doesn’t take a brain surgeon to understand that if you bring a lot of people together in a small place, somebody’s going to get sick.”