The Wisconsin State Supreme Court has overturned Wisconsin’s safer-at-home order, originally issued in March. Essentially, the court has not ruled that the Safer At Home order itself is unconstitutional, but that the state didn’t follow the right process in issuing it.
Justices ruled Wednesday that the Evers’ administration was not authorized to direct Department of Health Services Secretary Andrea Palm’s “Safer at Home” extension that was scheduled to run until Tuesday, May 26.
Evers’ and his administration could issue new safer-at-home orders, but they would require additional approval by the Legislature’s rule-making committee, which is currently operated by Republicans.
This ruling does not mean that Evers’ order is immediately defunct, as Republicans have sought a temporary injunction to block the extension, which includes a six-day stay. This is designed to give state health officials time to go through the rule-making process. The order will therefore remain in effect until May 20.
UPDATE: The stay was not granted and the order is now overturned. This means bars, etc, can be reopened effective immediately. Schools will remain closed. We will update as we learn more.
Shortly after the Court’s decision, Chris Ott, executive director of the ACLU of Wisconsin, made the following statement:
“Public health experts have been clear that prematurely lifting social distancing measures will have serious and deadly consequences, especially for vulnerable communities. Today the Wisconsin Supreme Court chose to ignore those warnings, jeopardizing the health of all Wisconsinites and further endangering people of color and members of other vulnerable communities who already faced the greatest risk from this virus.
COVID-19 has laid bare the pervasive racial injustice that permeates every aspect of our society, deepening existing racial disparities and infecting communities of color at terribly disproportionate rates. Given this reality, it was incredibly disheartening to hear remarks made in the courtroom that demeaned and discounted the experiences of those most affected by the pandemic. The assertion that the scores of outbreaks occurring in meatpacking facilities were somehow acceptable because they don’t impact ‘regular folks,’ or the absurd equating of the safer-at-home order with Japanese-American internment, were painful to hear.
Emergency orders can be necessary during crises like a pandemic, as long as they are grounded in science and consistent with the need to protect the health, safety, and civil liberties of us all. Specifically, Wisconsin’s safer-at-home order has been instrumental in allowing Wisconsinites to stay home from work and protect themselves from infection. While some will still have the option to work from home and do what’s necessary to stay safe, a significant portion of people across the state, particularly people of color and those with low incomes, have now had that protection removed, even as COVID-19 continues to spread.
“Despite today’s ruling, we urge employers not to force people back to work before it is safe to do so or before childcare is available. We also encourage state leaders in the legislative and executive branches to make a serious effort to work together and continue to follow the advice of medical experts and make decisions that prioritize the health of Wisconsin residents and protect those who are most in danger.”
From the Court:
“We conclude that Emergency Order 28 is a rule under the controlling precedent of this court, Citizens for Sensible Zoning, Inc. v. DNR, 90 Wis.2d 804, 280 N.W.2d 702 (1979), and therefore is subject to statutory emergency rulemaking procedures established by the Legislature. Emergency Order 28 is a general order of general application within the meaning of Wis. Stat. §227.01(13) which defines “Rule.” 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.21Furthermore, Wis. Stat. §252.25 required that Emergency Order 28 be promulgated using the procedures established by the Legislature for rulemaking if criminal penalties were to follow. 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. 227must be followed because they safeguard all people.¶59We further conclude that Palm’s order confining all people to their homes, forbidding travel and closing businesses 21This decision does not apply to Section 4. a. of Emergency Order 28.”
This is a developing story.