The Wisconsin Supreme Court has finally ruled on the state’s lockdown order, in a case argued a week ago.

For background on the case and issues, see these prior posts:

This statement by Justice Rebecca Bradley during oral argument gained a lot of attention:

While a decision was pending, the lockdown was eased somewhat for retail stores:

Gov. Tony Evers on Monday allowed nearly all nonessential retail stores to reopen as long as they serve no more than five customers at a time, partially lifting the restriction that has kept them closed for weeks to slow the spread of the coronavirus.

The latest order, which took effect immediately, addresses criticism from smaller stores and Republican lawmakers that it was unfair to allow essential businesses such as grocery stores to remain open while nonessential ones such as flower shops had to close under Evers’ “safer at home” order. The latest order applies to all standalone stores and those in strip malls that have entrances to the outside, but not to stores in large indoor shopping malls.

Allowing the smaller retail stores to open will revive about 90,000 jobs in 14,000 businesses, said Missy Hughes, secretary of the Wisconsin Economic Development Corporation. More than half a million people have filed for unemployment benefits in Wisconsin since mid-March.

There is a second lawsuit challenging the lockdown that also has been filed:

The second case, filed May 4, is narrower, but it could still have sweeping consequences depending on what the court decides.

It was brought by two private citizens, Waukesha County resident Jere Fabick and Walworth County resident Larry Chapman, who argue the order unconstitutionally restricted their rights as individuals. Fabick is a policy advisor and board member for The Heartland Institute, the national conservative think tank.

At the heart of their case is the argument that while the stay-at-home order permits some activities without limitations, like shopping at hardware and grocery stores, it restricts activities that are protected under the Wisconsin Constitution.

Those include the state constitution’s guarantee that the “right of every person to worship Almighty God according to the dictates of conscience shall never be infringed.”

And a third lawsuit by a hairdresser.

The Wisconsin Supreme Court just issued an Opinion (pdf.) striking down the ‘Better-at-home’ order:

¶3 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.6 Furthermore, 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, as we explain fully below. 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. 227 must be followed because they safeguard all people.

¶4 We do not conclude that Palm was without any power to act in the face of this pandemic. However, Palm must follow the law that is applicable to state-wide emergencies. We further conclude that Palm’s order confining all people to their homes, forbidding travel and closing businesses exceeded the statutory authority of Wis. Stat. § 252.02 upon which Palm claims to rely.7

* * *

¶58 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.21 Furthermore, 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. 227 must be followed because they safeguard all people.

¶59 We further conclude that Palm’s order confining all people to their homes, forbidding travel and closing businesses exceeded the statutory authority of Wis. Stat. § 252.02, upon which Palm claims to rely.

By the Court.—Palm’s Emergency Order 28 is declared unlawful, invalid, and unenforceable.

Four “conservative” Justices signed onto the decision, Chief Justice Patience Roggensack, Justices Rebecca Bradley, Daniel Kelly and Annette Ziegler. “Conservative” Justice Brian Hagedorn, wrote a dissent joined liberals Ann Walsh Bradley and Rebecca Dallet.

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Wisconsin Legislature v. Pa… by Legal Insurrection on Scribd

 

 
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