The state Supreme Court’s conservative justices on Tuesday expressed deep skepticism about the authority of a cabinet secretary to extend Gov. Tony Evers’ “safer at home” order for controlling the spread of COVID-19, the disease caused by the new coronavirus.
The 90 minutes of argument, heard remotely by video conference, came after Evers, a Democrat, and leaders from both parties in the Legislature met for the first time to discuss a bipartisan response to the pandemic, which through Tuesday afternoon had killed 353 Wisconsin residents and sickened more than 8,500.
Chief Justice Patience Roggensack thanked participants and noted “there’s an awful lot of emotion” tied to the case “because we are in the middle of a pandemic that all sides agree on.” She gave no indication of when the court would rule but said it was meeting in closed session Tuesday afternoon.
At one point during arguments that were at times testy and complicated by video technology, justices shouted over one another about who had the floor to ask the next question, with liberal Justice Rebecca Dallet complaining that conservative Justice Daniel Kelly was not giving state Assistant Attorney General Colin Roth the chance to answer the question Kelly had asked.
“I would ask that he be able to answer the question because Justice Kelly keeps cutting him off,” Dallet said before Roggensack restored order.
GOP legislators filed the lawsuit on April 21, seeking to suspend the state Department of Health Services’ April 16 extension of Evers’ original order to May 26. Among other actions, the original order, issued March 24, closed businesses designated as nonessential to mitigate the spread of COVID-19.
Opponents of the measure say it has wrecked the state’s economy. Unemployment claims have soared as many businesses, those open and closed, have laid off or furloughed workers. But proponents of the order counter that Wisconsin’s coronavirus infection rate would be much higher if nothing had been done.
Roth, arguing for Evers’ side, was interrupted almost immediately by Justice Rebecca Bradley as he began his remarks.
“My question for you is, 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 to be imprisoned for going to work, among other ordinarily lawful activities?”
Roth responded that the state Constitution allows the Legislature to enact statutes to protect public health, “and that is exactly what the Legislature has done.” State law created by the Legislature, he said, gives the Department of Health Services the authority “to do whatever is necessary to combat a novel, deadly, communicable disease like the one we’re facing today.”
Bradley is part of the court’s conservative 5-2 majority, which agreed Friday to hear the case directly, rather than require the Legislature to proceed through the lower courts. Dallet dissented in that ruling.
Bradley, along with Kelly, who was defeated in last month’s election, continued to hammer at Roth about the authority for creating the order, where the limits of authority exist for DHS and its secretary-designee, Andrea Palm, and how the agency derives the power to punish those who violate the order. Roth appeared flustered at moments but said the power is in statutes created by the Legislature, which the Legislature could amend if it felt the need to do so.
“If you look at the statute, it’s in there,” Roth told Bradley.
The court will decide two issues: whether Palm violated state law governing the issuance of emergency rules by ordering the extension of “safer at home,” and whether the order exceeded the authority DHS has under state law by closing nonessential businesses, ordering state residents to stay at home and forbidding nonessential travel.
The Legislature is asking the court to suspend enforcement of the order past its original April 24 expiration, but suggesting that the court stay the enforcement of the suspension for six days to allow DHS enough time to create a new emergency rule with the participation of the Legislature.
But justices wondered why the court should suspend its ruling instead of simply invalidating the order, if it is an improperly created rule.
Ryan Walsh, arguing for the Legislature, said the thought behind the six-day wait is to give DHS an opportunity to create a rule following the procedure the Legislature believes would be proper, but said DHS has squandered the time it has had to begin the process.
“Unfortunately, DHS has done nothing,” he said. “It hasn’t issued a scope statement, despite our asking them to do so.”
The court, in its order Friday, declined to take up a third issue sought by the Legislature: whether DHS acted “arbitrarily and capriciously” in issuing the April 16 extension. The Legislature had asserted that DHS was “arbitrary and capricious” in its “freewheeling categorization” of businesses as either essential or nonessential.
The court allowed arguments only by Roth and Walsh. A number of other groups filed friend-of-the-court briefs favoring or opposing a ruling stopping enforcement of “safer at home.” The Legislature’s position is supported by Wisconsin Manufacturers and Commerce, the Wisconsin Dairy Alliance, hunting and fishing groups, and the Wisconsin Tavern League, among others.
Opposing the Legislature’s request are the Wisconsin Association of Local Health Departments and Boards; the Wisconsin Public Health Association; the Wisconsin Nurses Association; a coalition of state community, advocacy, labor and membership organizations; Wisconsin Faith Voices for Justice; and several other groups.
On Monday, a new lawsuit was filed with the state Supreme Court by Waukesha County resident Jeré Fabick, a GOP contributor and board member of the conservative Heartland Institute, and Larry Chapman, a resident of Walworth County and member of Pewaukee’s Lakewood Baptist Church. The lawsuit seeks to block items in the order pertaining to constitutional rights to freedom of speech and religious activities.
On Tuesday, the court gave Palm and others until May 8 to respond to the petition and gave Fabick and Chapman until May 11 to reply.
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