One of the more interesting lockdown lawsuits is a suit brought by the Wisconsin Legislature contesting the state’s lockdown order.

We covered the case in Wisconsin Legislature sues to stop Governor’s Stay-at-Home Order:

The Republican-controlled Wisconsin Legislature has just filed suit, going directly to the Wisconsin Suprem Court, seeking to prevent a second lock down order from liberal Governor Tony Evers….

The Petition (pdf.) and Motion for a Temporary Injunction (pdf.) raise a series of issues, as also described in a Memorandum In Support of the Petition (pdf.)….

Notice the focus on statutory executive authority and procedural requirements, which may be an important avenue to be pursued in similar lawsuits.

Here is an excerpt from the Introduction:

Purporting to act under color of State law, an unelected, unconfirmed cabinet secretary has laid claim to a suite of czar-like powers—unlimited in scope and indefinite in duration—over the people of Wisconsin. Per her decree, everyone in the State must stay home and most businesses must remain shuttered (with exceptions for activities and companies arbitrarily deemed “essential”). These restrictions apply not only to metropolitan areas with more COVID-19 cases but also to rural counties with few or no known cases. Just as troubling, the Secretary asserts that her go-it-alone shutdown authority has no expiration date—making it greater than even the Governor’s emergency powers. To be sure, Emergency Order 28 says it terminates on May 26, but nothing suggests that it won’t be extended again. Perhaps it will even run into 2021. In any case, by the time the Secretary sees fit to lift her decree (be it in five weeks or eight months), many Wisconsinites will have lost their jobs, and many companies will have gone under, to say nothing of the Order’s countless other downstream societal effects. Our State will be in shambles….

Incredibly, the Secretary took this unprecedented action without following any of our State’s requirements for rulemaking, while also intentionally waiving any reliance on the Governor’s emergency authorities, set to expire before this Order. If a single bureaucrat can evade the controls and accountability measures that the Legislature has enacted to control agency overreach simply by labeling what is obviously an emergency rule a mere “order,” then all of the reforms that the Legislature has put in place, and which this Court has interpreted and enforced over the years, are a meaningless, dead letter—in their most consequential application….

The Legislature respectfully requests that this Court issue an order temporarily enjoining enforcement of Emergency Order 28, because it is an improperly promulgated rule under Wisconsin Statutes § 227.24, and because it exceeds the Department’s authority under § 252.02 and is arbitrary and capricious in violation of § 227.57(8) to the extent it confines all residents to their homes, prohibits all private gatherings, broadly restricts travel, and closes all businesses deemed nonessential….

We saw a climpse of how pervasive the lock down has become when police confronted a woman on her porch because a neighbor reported that she was allowing her child to play at a friend’s house.

The state filed an Opposition (pdf.) to the Petition and Motion for Injunction, and the Legislature filed its Reply (pdf.)

The Supreme Court ruled that it would accept original jurisdiction in the case (meaning the case skipped the lower courts). My understanding of Wisconsin practice is that accepting original jurisdiction is very rare. They do it a few times a year.

Here is the Order (pdf.):

IT IS ORDERED that the Emergency Petition for Original Action is granted and this court assumes jurisdiction over this action as to only the following issues:

1. Whether the Department of Health Services (the Department) violated Wis. Stat. § 227.24, governing emergency rules, by issuing Emergency Order No. 28 without complying with § 227.24’s procedures; and

2. Even if the Department did not violate § 227.24, whether Emergency Order No. 28 exceeds the Department’s authority by closing all “nonessential” businesses, ordering all Wisconsin persons to stay at home, and forbidding all “nonessential” travel….

The Court scheduled Oral Argument for 10 a.m. on Tuesday, May 5.

IT IS FURTHER ORDERED that the court will hear oral argument in this matter at 10:00 a.m. on Tuesday, May 5, 2020. Due to the COVID-19 pandemic, oral arguments before the court will be conducted via videoconferencing. The hearing room will not be open to the public. The public may watch proceedings on the Wisconsin Eye website. Counsel in this case will receive instructions from the Clerk’s Office prior to the date of the oral argument regarding the procedures for appearing remotely; and

IT IS FURTHER ORDERED that the petitioner and the respondents shall each have forty-five minutes of oral argument time. In addition to addressing the two issues set forth above, the parties may, in their discretion, also address whether a temporary injunction should be issued;

This case is significant because, as pointed out at our Live Event on Sunday, April 26, contesting the legislative and statutory authority of the executive branch as to arbitrary and oppressive conditions is more likely to succeed than a constitutional argument against health measures related to fighting the spread of an infectious disease.

 

 
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