Conservative justices on the Wisconsin Supreme Court struck down Democratic Gov. Tony Evers monthslong stay-at-home order in a ruling released Wednesday.
The decision sided with the Republican leaders of the state Legislature who argued the governor's administration had overstepped its legal authority in extending Evers' "safer-at-home" order until May 26.
As part of the ruling, the justices granted a one-week stay to give Evers and lawmakers time to agree on new public health rules to replace the stay-at-home order.
In the suit, GOP lawmakers contended that Evers and Department of Health Services Secretary Andrea Palm could not continue to extend stay-at-home orders indefinitely without seeking approval from the state Legislature.
Attorneys for Evers contended that the governor and the state's top health official acted under clear emergency powers allowed for under state law.
After the justices heard arguments in the case during an online video conference last week, they ruled against the governor, a decision that effectively places any COVID-19 public health restrictions in the purview of a rule-making legislative committee controlled by Republicans, which would hold veto power over orders issued by Evers.
State Assembly Speaker Robin Vos and state Senate Majority Leader Scott Fitzgerald, both Republicans, have said Evers' order goes too far, but have not offered any legislation or plan of their own on how the state should balance reopening the state's economy and keeping Wisconsinites safe.
In oral arguments before the court, the Legislature's attorney, Ryan Walsh, argued the case was not "about whether the lockdown is a good idea," but whether the "most consequential sweeping regulation likely ever issued in our state's history applicable to every person, synagogue, church, mosque, business, city, town and county" by the health director was subject to the state's legislative rule-making process.
Evers and his attorneys contended the health secretary acted under the powers granted to her by the Legislature in a state law and that subjecting every act on how to respond to the pandemic to legislative approval would slow decision-making and risk lives.
Deputy Attorney General Colin Roth argued striking down the health order would "be absolutely devastating and extraordinarily unwise" and if no order were issued to replace it people would "pour out into the streets, the disease will spread like wildfire and we'll be back in a terrible situation with an out-of-control virus with no weapon to fight it _ no treatments, no vaccine, nothing."
Conservative Justice Rebecca Bradley repeatedly peppered Roth with questions about the state's constitution and whether Palm, the health secretary, had the power to fine and imprison people for actions that are normally lawful. Roth argued the law previously passed by the Legislature gave Palm that wide-ranging power during a health emergency, but Bradley seemed unconvinced.
"Where in the constitution did the people of Wisconsin confer authority on a single, unelected Cabinet secretary to compel almost 6 million people to stay at home and close their businesses and face imprisonment if they don't comply, with no input from the Legislature, without the consent of the people?" Bradley asked. "Isn't it the very definition of tyranny for one person to order people for being imprisoned for going to work, among other ordinarily lawful activities?"
The legal battle is the latest episode in a long-running and bitter political divide between the Republicans and Democrats in a state that is viewed as a crucial swing state in the fall presidential election. President Donald Trump narrowly won Wisconsin four years ago.
Fitzgerald and Vos won a similar decision before the state Supreme Court earlier this year that overturned Evers' effort to delay the April 13 election and mail all voters a ballot amid the coronavirus pandemic. The ruling required in-person voting to be held as planned, despite a massive shortage of poll workers and a dramatic reduction in the number of voting locations.
Evers issued his initial stay-at-home order on March 18, which closed schools and shuttered nonessential businesses. On April 16, the governor extended the order until May 26, but he allowed for elective surgeries to resume and state parks and golf courses to open.
At the time the Republican lawmakers sued, Wisconsin's COVID-19 cases were still on the rise, though they now have started to level off. All told, 10,611 people have been sickened by the virus in the state and 418 have died.
As conditions have improved in recent days, Evers also has begun to loosen restrictions under his "Badger Bounce Back Plan" to gradually reopen the state's economy. That included an announcement this week that retail stores could reopen with a limit of five customers at a time.
Under Evers' plan, once the state hits a green light in six categories on a state health department dashboard, Wisconsin can move into the first phase of his bounce back plan. Under that phase, restaurants could open with limited capacity, schools could be allowed to reopen and day care facilities could operate without a capacity limit among other provisions.
So far, the state has a green light in five of the six categories, including appropriate hospital capacity and a 14-day decrease in the percentage of positive COVID-19 tests.
Statewide in Wisconsin, the percentage of positive COVID-19 cases, or positivity rate, has dropped to less than 4%. By contrast, the most recent positivity rate released for Illinois is 17%.
Along with Illinois and Michigan, Wisconsin has been one of the most cautious states in the Midwest when it comes to reopening its economy. All three states are run by Democratic governors. By contrast, Iowa, Missouri, Indiana and other Midwestern states controlled by Republicans have more urgently opened up sectors of their economies even as the number of COVID-19 cases in some of those states have continued to increase.
A new Marquette University Law School poll released Tuesday found 64% of Wisconsin voters approved of Evers handling of the pandemic compared to 32% who disapproved. That's down from a 76% approval rating in March, but like many governors it far outpaces public support for Trump's handling of the pandemic. The poll found 44% of Wisconsin voters approved of Trump's response to COVID-19, down from 51% in March.
Asked who they trusted more to handle the response to the pandemic, 53% said Evers compared to 33% who said the state Legislature. The survey also found 56% of Wisconsinites are worried about the state's economy reopening too soon compared to 40% who said they were worried it would not reopen soon enough.
Asked about Evers stay-at-home order to close businesses and schools, 69% of voters said his actions were appropriate compared to 26% who said they were an overreaction. That marks a drop in support for Evers' actions since March, when 86% said the governor's actions were appropriate and only 10% said they were an overreaction.
