On Wednesday, the Wisconsin Supreme Court ruled 4-3 to end the extension of the Safer at Home order by Governor Tony Evers’ Department of Health Services (DHS).
Chief Justice Patience “Pat” Roggensack was joined by Justices Dan Kelly, Rebecca Bradley and Annette Ziegler in the majority, stating that the Evers Administration and DHS Acting Secretary Andrea Palm needed to submit the emergency order as a rule to the legislature for approval.
“Rulemaking exists precisely to ensure that kind of controlling, subjective judgment asserted by one unelected official, Palm, is not imposed in Wisconsin,” Roggensack wrote.
Conservative Justice Brian Hagedorn joined the two liberals on the court, Justices Rebecca Dallet and Ann Walsh Bradley in voting against striking down the Safer at Home order. “The legislature may have buyer’s remorse for the breadth of discretion it gave to DHS in Wis. Stat. § 252.02,” Hagedorn wrote. “But those are the laws it drafted; we must read them faithfully whether we like them or not.”
The repeal of the Safer at Home order does not re-open the state’s schools and does not apply in Dane County or the city of Milwaukee where local restrictions to fight the Coronavirus pandemic are in force.
However, the repeal of the Safer at Home order was like the repeal of Prohibition as some bars and restaurants around the state re-opened in celebration.
The following are reactions from prominent public officials and other public figures to the Supreme Court ruling.
Assembly Speaker Robin Vos (R-Rochester) and Senate Majority Leader Scott Fitzgerald (R-Juneau):
“When we met with Governor Evers a week ago, we asked him to begin negotiating with us on a plan for reopening. He politely declined and said we should wait for the court decision. Now that the decision has been rendered, we are confident Wisconsin citizens are up to the task of fighting the virus as we enter a new phase.
“The recent Marquette Law School Poll found that 77 percent said they would be comfortable visiting a friend or family member’s home. 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.
“Republicans believe business owners can safely reopen using the guidelines provided by the Wisconsin Economic Development Corporation. We urge our fellow small business owners to utilize the suggestions as a safe and effective way to open up our state.
“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.
“We would urge the Evers administration to work with us to begin promulgating rules that would provide clear guidance in case COVID-19 reoccurs in a more aggressive way.”
Assembly Majority Leader Jim Steineke (R-Kaukauna):
“Instead of coming together to work on a plan for all of Wisconsin like we repeatedly called for, tonight’s ruling only shows that Governor Evers and his administration overreached under the law and is being told to play by the rules.
“As legislative Republicans have said all along, all Wisconsin businesses are essential, as are the families they support in our communities. As we now move to join the many other states who don’t have shelter in place orders in effect, I would encourage those planning to open the doors for the first time to be proactive and smart about finding ways to safely open their businesses. Further, I would encourage small businesses in our region to utilize the commonsense guidance made available by the Wisconsin Economic Development Corporation for ensuring a safe workplace.
“Finally, as we continue to move forward, I would like to again invite Governor Evers to join us in collaborating on solutions as we work to develop new COVID-related policies that work for all of us.”
Governor Tony Evers:
“Up until now, Wisconsin was in a pretty good place in our battle against COVID-19. 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,” said Gov. Evers. “Despite that good work, Republican legislators have convinced 4 justices to throw our state into chaos.
“We cannot let today’s ruling undo all the work we have done and all the sacrifices Wisconsinites have made over these past few months. We need everyone to continue doing their part to keep our families, our neighbors, and our communities safe by continuing to stay safer at 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.
“This virus has killed more than 400 of our family members, friends, and neighbors and thousands more across our state are sick. I am disappointed in the decision today, but our top priority has been and will remain doing what we can and what we have to do to protect the health and safety of the people of our state. After months of unproductive posturing, I hope the folks in the Legislature are ready to do the same.”
Rick Esenberg, President, Wisconsin Institute for Law & Liberty
“The Court’s decision ensures that Wisconsin’s response to COVID-19 must involve both the executive and the legislative branch. Wisconsin will be better for it. The grave nature of the pandemic cannot be used to subvert our very form of government.”
Note: The Wisconsin Institute for Law & Liberty filed an amicus brief in support of the Wisconsin legislature’s lawsuit challenging the extension of the Safer at Home order.
Americans For Prosperity-WI State Director Eric Bott:
“The Wisconsin Supreme Court’s ruling in this case is a win for the protection of the separation of powers and the necessary legislative and public oversight in the administrative rule-making process.
“As AFP-WI stated in our Amicus Curiae brief, there are commonsense ways people can work together to develop an approach that both protects health and keeps food on the table for Wisconsin families. By respecting core separation of powers principles and honoring the legislature and public’s role in addressing the crisis, government is more likely to develop the goodwill necessary for successful outcomes.
“AFP-WI urges Governor Evers, the legislature, and the public to quickly work together to develop solutions that continue to protect public health, while allowing Wisconsinites to get back to work safe and sound in order to mitigate further economic harm for Wisconsinites.”
State Sen. Chris Kapenga (R-Delafield):
“By siding with the legislature, the courts have ruled that Governor Evers and his administration have overstepped the bounds of his authority. Unfortunately, ignoring the law has become a consistent theme of this administration, and I am glad to see the Supreme Court has once again recognized this overreach.
“Effective immediately, Wisconsin is back open. It is now up to each individual person to decide how restrictive they feel they need to be, instead of the government mandating it. The legislature will now begin to work through how to properly handle these situations should they arise in the future.”
