Justices offer opinions, Health Department warns of rise in COVID-19 cases

By Jalen Maki

Tomahawk Leader Co-Editor

WISCONSIN – The Wisconsin Supreme Court ruled 4 to 3 on Wednesday, May 13 to strike down Governor Tony Evers’ Stay at Home order extension, saying his administration overstepped its authority when Department of Health Services (DHS) Secretary Andrea Palm extended the order from April 24 to May 26.

Evers issued the original order in March in an effort to slow the spread of COVID-19. On April 21, Republicans in the State Legislature sued to block the extension to May, saying that Palm exceeded DHS authority granted to the department under state law when she ordered nonessential businesses to close, nonessential travel to cease and Wisconsin residents to stay home.

Attorneys for Legislative Republicans argued that Palm violated state law when she issued the order because she did not follow protocol for emergency rule procedures, which require legislative oversight. Palm’s attorneys claimed the order was not a rule, but an order, and she had the authority to issue it because it was in response to a specific emergency.

The court ultimately decided that the order was a rule that required oversight from the Legislature and that orders requiring people to stay home, prohibiting travel and shuttering businesses exceeded the authority granted to Palm by state law to manage public health emergencies.

Justices offer opinions

The court’s 4 to 3 decision was not split along ideological lines. Conservative Justice Brian Hagedorn joined liberal Justices Rebecca Dallet and Ann Walsh Bradley in dissent, while Chief Justice Patience Roggensack, Justice Annette Ziegler, Justice Rebecca Bradley and Justice Daniel Kelly, all conservatives, voted to overturn Palm’s extension order.

Roggensack, delivering the opinion for the majority, wrote that the 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.”

Roggensack ended the opinion by declaring Palm’s extension of the order “unlawful, invalid, and unenforceable.”

Writing in concurrence, Kelly said that although the order “may be a brilliantly conceived and executed response to COVID-19,” the question before the court was ultimately whether Palm had the authority to issue the order. Kelly, who lost his reelection bid to liberal Dane County Circuit Court Judge Jill Karofsky on April 7, will see his term on the state’s highest court end July 31.

In dissent, Dallet said the majority of the court did “the Legislature’s bidding” by striking down the order.

“The Legislature has always had the power to act, but would rather ask this court to do so to avoid political fallout,” Dallet wrote. “Unfortunately for Wisconsinites, this court took the bait.”

Hagedorn, in dissent, wrote that the court was “allowing the legislature to argue its own laws are unconstitutional, a legal claim it has no authority to make.”

“In striking down most of Order 28, this court has strayed from its charge and turned this case into something quite different than the case brought to us,” Hagedorn said. “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 DHS in Wis. Stat. § 252.02. But those are the laws it drafted; we must read them faithfully whether we like them or not.”

Evers, legislators react

The reaction to the court’s decision among state elected officials was split along party lines.

Evers, in a statement from May 13, expressed his disappointment in the ruling.

“Up until now, Wisconsin was in a pretty good place in our battle against COVID-19,” Evers said. “We had reached almost all our gating criteria. We had opened up 14,000 small businesses across the state, putting 90,000 folks back to work, and that was because of the good work of Wisconsinites across our state who banded together, stayed home, and stayed safe. Despite that good work, Republican legislators have convinced four justices to throw our state into chaos.”

Despite the decision, Evers said Wisconsinites should continue to stay home, practice social distancing and limit travel, “because folks, deadly viruses don’t wait around for politicians and bureaucrats to settle their differences or promulgate rules.”

“Please don’t be coaxed into a false sense of security by the Supreme Court’s misguided action,” State Senator Janet Bewley (D-Mason) said in a May 13 statement. “Wisconsinites are resilient and when we work together to stay safer-at-home we can slow the spread and protect our most vulnerable loved ones.”

Assembly Speaker Robin Vos (R-Rochester) and Senate Majority Leader Scott Fitzgerald (R-Juneau), who brought the lawsuit, said in a statement that they are “confident Wisconsin citizens are up to the task of fighting the virus as we enter a new phase,” citing a Marquette Law School poll that found a drop in support for the Safer at Home order from 86% in March to 69% this month.

“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,” they said in the statement. “This order does not promote people to act in a way that they believe endangers their health.”

Health Department: Order is gone, virus is not

In a statement from Thursday, May 14, the Lincoln County Health Department warned that although the Safer at Home order is no longer in place, the dangers presented by COVID-19 are still present.

“The order is gone, the virus is not,” the department said. “In recent days, central Wisconsin infection numbers have begun to rise. While testing availability has increased, it cannot be assumed this is the only reason for the increase. Lincoln County residents are not immune to getting this virus and the numbers will continue to increase in the days and weeks to come.”

The department urged Lincoln County residents to “be smart and continue to practice the guidance that has been shared over the last eight weeks,” including maintaining physical distance, avoiding gathering in groups, using good personal hygiene, and practicing proper hand washing techniques.

“Do not go to work, the store, or anywhere else when you feel ill,” the department stated. “Consider wearing a cloth face covering when out in public. People who are vulnerable and at higher risk of severe complications of COVID-19 should stay home whenever possible. This includes people over the age of 65, people who live in nursing homes or long-term care facilities, and individuals with underlying health conditions or who are immunocompromised.”

The department said it will continue to monitor the COVID-19 pandemic and address any outbreaks or spikes that occur.

“It is our job to protect our community, provide services and take appropriate action as necessary,” said Health Department Director and Health Officer Shelley Hersil. “The Safer at Home order has been instrumental in flattening the curve. It has also provided us with time to prepare.”