Wisconsin Supreme Court Strikes Governor’s State Lockdown Extension

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MADISON, Wis. — Declaring that the state’s top health official wrongly bypassed legislative oversight, the Wisconsin Supreme Court on Wednesday struck down the Evers’ administration’s extended lockdown of the state.

The 4-3 decision by the conservative-led court declares Wisconsin Department of Health Services Secretary-designee Andrea Palm’s Emergency Order 28 “unlawful, invalid, and unenforceable.”

“Because Palm did not follow the law in creating Order 28, there can be no criminal penalties for violations of her order,” the ruling notes. “The procedural requirements of Wis. Stat. ch. 227 must be followed because they safeguard all people.”

Palm’s extended order, issued before Evers’ first stay-at-home edict was set to expire on April 24, criminalized what are generally constitutionally protected activities — free travel, operating a business, attending church, among other such lockdown “crimes.” That’s a point outgoing Justice Daniel Kelly drove home during last week’s oral arguments before the court.

“We require standard pre-exists as a matter of law. … The secretary all by herself created a criminal law,” Kelly told a state Department of Justice attorney defending the order. “Your position is the secretary can identify behavior that is not otherwise criminal, that she can, all by herself, sit down at her computer keyboard, write up a description of behavior, and make it criminal?” Kelly asked.

The attorney, Assistant Attorney General Colin Roth, was forced to concede the point.

Bars, restaurants, and other businesses that Team Evers deemed “nonessential” as part of the administration’s response to the COVID-19 outbreak would be able to reopen, although local jurisdictions could still implement restrictive public safety rules. Evers and the Republican-led legislature will now have to come to terms on a compromise response to the pandemic, a tall order for two deeply divided political sides.

Not surprisingly, the court’s two leftist justices dissented. But so did the court’s newest conservative, Justice Brian Hagedorn, who filed a dissenting opinion in which Justices Ann Walsh Bradley and Rebecca Dallet partially joined.

Hagedorn’s argument is that the case, Wisconsin Legislature v. Palm, is not a “battle over the constitutional limits on executive power.” Hagedorn insists the case is much duller than that, mainly about whether the commands in the order were required to be promulgated as an administrative rule under Wisconsin statute. In short, the legislature has no standing.

“I conclude the Legislature as a constitutional body whose interests lie in enacting, not enforcing the laws lacks standing to bring this claim,” Hagedorn wrote. “Such claims should be raised by those injured by the enforcement action, not by the branch of government who drafted the laws on which the executive branch purports to rely.”

A case pending before the court, filed by two Wisconsin citizens, does indeed raise clear constitutional questions, alleging the government’s abuse of myriad civil liberties. According to Hagedorn’s reasoning, Palm’s DHS has the authority to enforce the penalties that its emergency order effectively created.

Conservative Justice Rebecca Bradley wrote that her colleague’s argument lacked “constitutional analysis,” and that it “affirmatively rejects the constitution, and subjugates liberty.” The majority opinion, written by Chief Justice Patience Roggensack, argues the case is about “the assertion of power by one unelected official, Andrea Palm.” Palm, the majority notes, was and is subject to statutory emergency rule-making procedures established by the legislature.

“Accordingly, the rulemaking procedures of Wis. Stat. § 227.24 were required to be followed during the promulgation of Order 28. Because they were not, Emergency Order 28 is unenforceable,” Roggensack wrote. “Because Palm did not follow the law in creating Order 28, there can be no criminal penalties for violations of her order. The procedural requirements of Wis. Stat. ch. 227 must be followed because they safeguard all people.”

Evers’s authority to unilaterally act under state law ended on Monday. He attempted to circumvent the emergency statute by having Palm sign the order.

The lockdown, the administration contends, was about “flattening the curve” of virus spread, ensuring ample health-care resources and protecting citizens. But the metrics he laid out to reopen the state have been met, and Wisconsin’s hospitals have plenty of available resources to treat serious COVID-19 cases. Only 11 of the 43 states that issued stay-at-home orders still have lockdowns in place.

Meanwhile, Federal Reserve Chair Jerome Powell on Wednesday warned of a prolonged recession spurred by the freeze of economic activity. The U.S. unemployment rate in April approached 15 percent. In Wisconsin, more than a half-million people have lost their jobs in the two-plus months of the lockdowns.

The Supreme Court’s majority opinion does not conclude that Palm “was without any power to act in the face of this pandemic.”

“However, Palm must follow the law that is applicable to state-wide emergencies. We further conclude that Palm’s order confining all people to their homes, forbidding travel and closing businesses exceeded the statutory authority … upon which Palm claims to rely,” the opinion states.

Without legislative oversight, a single elected official could “create law applicable to all people during the course of COVID-19 and subject people to imprisonment when they disobeyed her order,” the ruling states.

"A case pending before the court, filed by two Wisconsin citizens, does indeed raise clear constitutional questions, alleging the government’s abuse of myriad civil liberties." --MD Kittle

So we all need to do what we can to see that The Heartland Institute's case is fast-tracked in WI, because clearly they mean to preserve Constitutional issues that would arise to Certiorari. We get Cert on a case like this, we can put this whole nightmare behind us.

"Fabick and Chapman are challenging the order on its merits, arguing that key sections are blatantly unconstitutional.
Chapman alleges that language limiting religious gatherings to nine or fewer people violates his right to freedom of religion. The limit has prevented Lakewood from holding in-person Sunday services and distributing communion, he says. Virtual services don’t fulfill the Bible’s call for in-person worship and many elderly members can’t use such services, he adds. [ Ed. note : This exact theory was successful in re-opening churches in Kentucky, but as it was successful, obviously the issue was not preserved for Cert. ]
Fabick, meanwhile, alleges that the order limits his free speech and travel rights. According to the lawsuit, he wants to engage in protests against the order but the travel ban prevented him from joining one in Madison on April 24.
“Even a public health crisis does not give the State executive authorities license to impose measures that are arbitrary and irrational, or that patently violate our most sacred constitutional rights,” the lawsuit said.

I know these are the standard arguments.

There’s definitely going to be more, was my point.

You guys keep talking about choice, but if we choose to follow the regulations and you guys don’t, you’re really not giving us a choice. We can’t do it all by ourselves. There will be more sickness.

I think the liberal college presidents are going to try to take down the country by not opening in the fall. They are going to close and still pay their staff. They will not save any money. They will spend everything they have and ask for more. The state of Massachusetts is the big test. If Harvard and Boston University close the whole state will be forced to follow suit. Then the lower schools will close. They will try to force people to stay home watching their kids. Remember public school boards run the schools not governors. And teachers hate trump. They don’t like kids much either. They would not mind kids sitting at home for a year if it might hurt Trump. This is the plan. And if they think they can get away with it, they will do it.

In the teacher’s union eyes, It gets better when you think of the private schools. If private schools are forced to close too, Many of them may never open again. They live hand to mouth. They can’t sit around for a year not getting paid. They can’t just pay their staff. And they still have to maintain their buildings. It will be a huge hardship. Public school teachers won’t mind that a bit. Win Win.

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