Empower Wisconsin | May 13, 2020
By M.D. Kittle
MADISON — 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 Collin 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 re-open, 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 liberal 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.” And 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 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 re-open 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 fo 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.