The state Supreme Court today ruled against the Safer at Home rules imposed by Governor Evers and Secretary-Designee Palm, claiming that the emergency orders overstepped the authority of the Department of Health Services and also violated the law passed in the lame-duck session at the end of the Walker administration that requires all administrative rules be approved by the state legislature. 

Today's opinion requires the Governor and Secretary Palm to work together with the legislature to forge new rules on the COVID-19 epidemic, which may prove a difficult task. The opinion was written by most of the conservative majority on the bench - Justices Rebecca Bradley, Daniel Kelly, and Annette Ziegler, as well as Chief Justice Patience Roggensack.  The dissenting opinions by Justice Anne Walsh Bradley and Justice Rebecca Dallet raise questions about confusion in the majority ruling on whether the opinion takes place immediately or simply stays the current rules until May 20 as originally asked for in the suit, giving time to reach an agreement between the legislature and executive branch. It appears the court's majorit intends the ruling to immediately take place.  The dissenting opinion was joined by one of the conservative justices, Brian Hagedorn. The outcome of this case may have been quite different had it taken place after August, when Dane County Circuit Judge Jill Karofsky takes the place of Justice Dan Kelly. In her dissent justice Dallet wrote "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."

The court opinion is attached below. This is a breaking story and there will be changes to this article throughout the evening.

The Wisconsin ACLU quickly responded to the opinion:

“Public health experts have been clear that prematurely lifting social distancing measures will have serious and deadly consequences, especially for vulnerable communities. Today the Wisconsin Supreme Court chose to ignore those warnings, jeopardizing the health of all Wisconsinites and further endangering people of color and members of other vulnerable communities who already faced the greatest risk from this virus.

COVID-19 has laid bare the pervasive racial injustice that permeates every aspect of our society, deepening existing racial disparities and infecting communities of color at terribly disproportionate rates. Given this reality, it was incredibly disheartening to hear remarks made in the courtroom that demeaned and discounted the experiences of those most affected by the pandemic. The assertion that the scores of outbreaks occurring in meatpacking facilities were somehow acceptable because they don’t impact ‘regular folks,’ or the absurd equating of the safer-at-home order with Japanese-American internment, were painful to hear.

Emergency orders can be necessary during crises like a pandemic, as long as they are grounded in science and consistent with the need to protect the health, safety, and civil liberties of us all.  Specifically, Wisconsin’s safer-at-home order has been instrumental in allowing Wisconsinites to stay home from work and protect themselves from infection. While some will still have the option to work from home and do what’s necessary to stay safe, a significant portion of people across the state, particularly people of color and those with low incomes, have now had that protection removed, even as COVID-19 continues to spread. 

Despite today’s ruling, we urge employers not to force people back to work before it is safe to do so or before childcare is available. We also encourage state leaders in the legislative and executive branches to make a serious effort to work together and continue to follow the advice of medical experts and make decisions that prioritize the health of Wisconsin residents and protect those who are most in danger.”

The state Tavern League has advised its members that they may open immediately and some bars in the state are likely to open this evening.

Locally State Senator Jeff Smith released this statement:

“I’m incredibly disappointed by the Wisconsin Supreme Court decision to lift the Safer at Home order prematurely, despite the opposing demands from medical professionals and public health experts.This Supreme Court’s decision jeopardizes all the progress we’ve made to stop COVID-19in Wisconsin.

“It’s unfortunate that Republicans brought this lawsuit to the Supreme Court, hoping for the Safer at Home order to be dismantled, despite not having a legitimate plan in place to keep Wisconsinites safe. Lifting the Safer at Home order,before meeting the metrics established by the Governor and the President,risks more long-term and severe economic impacts and more lives lost. Republicans are gambling with people’s lives purely for political purposes.

“We must listen to the medical professionals, not the politicians, to get through this safely with less people unemployed and less families coping with the loss of life from COVID-19. Although the order was struck down today, I’m confident if we all work together, we can find a way to progressforwardagain.”

Today's ruling is slightly ironic in view of the fact that the DHS has loosened restrictions on businesses considerably in the past few weeks and that according to recent polls the majority of Wisconsinites support the continued restriction of business for the sake of safety in the pandemic.  The end result of this is likely to be a hodge-podge of rules and regulations around the state as individual counties make their own laws and regulations. Soon after the court ruling the Dane County Health Department issued an order enacting a Safer at Home order for Madison and Dane County. It appears likely there will be more local restrictions, and possibly further litigation.

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Steve Hanson

Steve is a web designer and recently retired from running the hosting and development company Cruiskeen Consulting LLC. Cruiskeen Consulting LLC is the parent company of Wis.Community, and publication of this site continues after his retirement.

Steve is a member of LION Publishers and the Local Media Association, is active in Health Dunn Right, and is vice-president of the League of Women Voters of the greater Chippewa Valley



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