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August 6, 2020

5/14/2020 9:44:00 AM
Supreme Court strikes down Safer at Home order
Richard Moore
Investigative Reporter

In a 4-3 decision, the Wisconsin Supreme Court has voided Gov. Tony Evers's order that shut down businesses, closed schools and restaurants, banned non-essential travel, and forbade private and public gatherings.

The Legislature had challenged the order, in which the administration claimed broad and unilateral powers to act through its Department of Health Services secretary, Andrea Palm.

Conservatives on the court - chief justice Patience Roggensack and justices Rebecca Bradley, Daniel Kelly and Annette Ziegler - formed the majority; conservative justice Brian Hagedorn dissented, joining the court's two liberals, Ann Walsh Bradley and Rebecca Dallet.

There was no stay of the order to give the governor and the Legislature time to work together to fashion a consensus plan, aa the Legislature had asked for. So, restaurants, bars, and other closed establishments can reopen so long as they do not run afoul of local regulations.

Specifically, the sate Supreme Court determined that Evers's and Palm's emergency order had exceeded statutory authority and was subject to statutory emergency rule-making procedures established by the Legislature, which Palm declared she did not have to follow.

"Because Palm did not follow the law in creating Order 28, there can be no criminal penalties for violations of her order," the majority wrote in the opinion. "...We further conclude that Palm's order confining all people to their homes, forbidding travel and closing businesses exceeded the statutory authority of Wis. Stat. § 252.02, upon which Palm claims to rely. Palm's Emergency Order 28 is declared unlawful, invalid, and unenforceable."

New statewide rules could be implemented, but that will require emergency rule-making and the Legislature will have veto power over any new rules.

Not all of the state is free from the restrictions. Shortly after the Supreme Court decision, Public Health Madison and Dane County announced they were using their local authority to issue a city of Madison and Dane County order that incorporated the elements of the statewide Safer at Home order, effective immediately.

On the other side, the Tavern League of Wisconsin immediately announced that businesses and bars could open but cautioned establishments to follow state guidelines for safe operations.

Wisconsin Manufacturers & Commerce also commended the court for upholding the rule of law and for 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," WMC president Kurt Bauer said. "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."

Two non-profit organizations that work to protect the rights of anglers and hunters in Wisconsin also praised the decision. In a brief in the case, Hunter Nation and the Wisconsin Lakeshore Business Association had called the governor's order, which had shut off access to fishing for thousands of professional fishing guides, charter boat captains and their clients, as "arbitrary and capricious and a clear violation of our constitutionally protected rights."

"We applaud the Court's decision and thank them for standing up for charter,and guide fishing businesses," WLBA president Tom Kleiman of Kewaunee said. "This ruling brings clarity to not only the fishing industry but all businesses in Wisconsin. The WLBA was proud to stand with Hunter Nation defending the rights of Wisconsin sportsmen and Wisconsin businesses."

Attorney Adam Jarchow, who volunteered to take the lead in writing the brief pro-bono for the groups, called it a great day for liberty and a vindication of the rule of law.

Democrats, though, condemned the decision.

"I am deeply disappointed that a narrow majority on the Supreme Court put ideology over public health and safety in this case," said state Sen. Bob Wirch (D-Somers). "With Kenosha and Racine being labeled new hotspots in a recent White House report, this is clearly not in the best interest of the health and safety of our residents. We all want to reopen the state, but it needs to be done safely and responsibly. The Republicans' victory comes at the expense of public health."

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