The Wisconsin Supreme Court has struck down Gov. Tony Evers’ order shutting down daily life to limit the spread of coronavirus — marking the first time a statewide order of its kind has been knocked down by a court of last resort.
The state’s highest court, which is controlled by conservatives, sided with Republican lawmakers Wednesday in a decision that curbed the Evers administration’s power to act unilaterally during public health emergencies.
The 4-3 decision was written by four of the court’s conservatives – Chief Justice Patience Roggensack and Justices Rebecca Bradley, Daniel Kelly and Annette Ziegler.
The court’s fifth conservative, Brian Hagedorn, wrote a dissent joined by the court’s two liberals, Ann Walsh Bradley and Rebecca Dallet. (The Bradleys are not related.)
The ruling, for now, throws out the administration’s tool to control the disease for which there is no vaccine and comes at a time when Evers has already begun lifting some restrictions as the spread of the virus slows down for now.
It will force the Democratic governor and Republican-controlled Legislature to work together on the state’s response to the ebbs and flows of the outbreak — a dynamic the two sides have rarely been able to achieve before.
GOP lawmakers who brought the lawsuit have said the legal challenge was necessary to get a seat at the table where Evers and state health officials make decisions about how to respond to the outbreak, which has killed 418 people in the state in two months.
The order expires Tuesday.
The ruling giving them the ability to block the Evers administration during the pandemic comes a day after a new statewide poll showed the public trusts Evers more than the Republican-led Legislature on when to begin reopening and relaxing restrictions related to the outbreak.
Evers has maintained his administration needs to be nimble and is relying on health experts to guide his decisions. He has said the procedure GOP lawmakers want will mean the state won’t be able to act quickly.
The court agreed with Republican lawmakers and required Department of Health Services Secretary Andrea Palm and Evers to use a process known as rulemaking, which allows a committee with some of Evers’ biggest critics to have veto power over a plan the DHS puts forward.
Wisconsin was one of 43 states to be locked down by its governor and as of Wednesday, it was one of 11 with such restrictions still in place.
At the heart of the lawsuit is a state law governing communicable diseases that says, “The department (of Health Services) may close schools and forbid public gatherings in schools, churches, and other places to control outbreaks and epidemics,” and gives the department the power to “authorize and implement all emergency measures necessary to control communicable diseases.”
The first laws providing powers to government officials were crafted in 1887, about 30 years before the 1918 flu pandemic that epidemiologists have said is similar to this year’s coronavirus outbreak.
In 1981, amid the HIV and AIDS epidemic, the state Legislature gave the power to DHS to issue orders — instead of using rulemaking.
Said Legislature was controlled by Democrats with a not particularly partisan governor, Lee Sherman Dreyfus.
Wednesday’s ruling came after a few thousand protested against the governor’s restrictions at rallies across the state, some comparing Evers to a murderous dictator and others complaining the order had nearly ruined their livelihoods.
More than 500,000 people filed for unemployment since Evers ordered the closure of businesses providing what the state has defined as non-essential services, like restaurants, hair salons, and tattoo parlors.
But the orders also had broad support from the public. A poll released Tuesday by the Marquette University Law School showed 69% of voters surveyed believed Evers’ actions were appropriate, though that support had decreased since March when more than 80% supported the restrictions.
Support and opposition has largely fallen along partisan lines.
In March, 83% of Republicans said closures were appropriate, compared with 49% in the new poll.
Among Democrats, support slipped from 95% in March to 90% in the current poll while among independents support slipped from 79% to 69%.
The public also trusted Evers more than the Republican-led Legislature on when to begin reopening and relaxing restrictions related to the outbreak, according to the poll.
Fifty-three percent said they trusted Evers more than the Legislature while 33% said they trusted the Legislature more to make those decisions.
The decision was not a surprise after Evers and his administration came under fire last week by conservative justices during oral arguments, including from one who compared his order to close businesses and schools amid the coronavirus outbreak to government oppression.
“Isn’t it the very definition of tyranny for one person to order people to be imprisoned for going to work among other ordinarily lawful activities?” asked Justice Rebecca Bradley, who later questioned whether the administration could use the same power to order people into centers akin to the U.S. government’s treatment of Japanese Americans during World War II.