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May 14, 2020, 9:15 a.m. EDT

Wisconsin Supreme Court tosses out Democratic governor’s extension of stay-home order

Ruling essentially reopens state, though local government can still impose restrictions

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By Associated Press


Wisconsin State Journal via AP
Wisconsin Gov. Tony Evers.

MADISON, Wis. — The Wisconsin Supreme Court struck down Gov. Tony Evers’s coronavirus stay-at-home order Wednesday, ruling that his administration overstepped its authority when it extended the mandate for another month without consulting legislators.

The 4-3 ruling essentially reopens the state, lifting caps on the size of gatherings, allowing people to travel as they please and allowing shuttered businesses to reopen, including bars and restaurants. The Tavern League of Wisconsin swiftly posted the news on its website, telling members, “You can OPEN IMMEDIATELY!”

President Donald Trump, who previously had told governors that they should reopen state economies on their own terms in accordance with federal guidelines, celebrated the decision on Twitter:

The decision let stand language that had closed schools, however, and local governments can still impose their own health restrictions. In Dane County, home to the capital of Madison, officials quickly imposed a mandate incorporating most of the statewide order. City health officials in Milwaukee, meanwhile, said a stay-at-home order they enacted in late March remains in effect.

Evers told reporters during a conference call Wednesday night that the state was doing well in the fight against the coronavirus, but the court ruling will lead more counties to adopt their own restrictions. He said the state will descend into a confusing patchwork of ordinances that will allow infection to spread.

See: States start to reopen, ending coronavirus lockdowns: Wisconsin top court strikes down stay-at-home order

“Today, Republican legislators convinced four members of the state Supreme Court to throw the state into chaos,” Evers said. “They have provided no plan. There’s no question among anybody that people are going to get sick. Republicans own that chaos.”

See: Republicans seek to undercut battleground-state Democratic governors amid pandemic

Chief Justice Patience Roggensack wrote for the majority that health secretary Andrea Palm’s order amounted to an emergency rule that she doesn’t have the power to create on her own, and also imposes criminal penalties beyond her powers.

“Rule-making exists precisely to ensure that kind of controlling, subjective judgement asserted by one unelected official, Palm, is not imposed in Wisconsin,” Roggensack, part of the court’s 5-2 conservative majority, wrote.

Rebecca Dallet, one of the court’s liberal justices, dissented. She wrote that the court’s decision will “undoubtedly go down as one of the most blatant examples of judicial activism in this court’s history. And it will be Wisconsinites who pay the price.”

Dallet also took aim at the potential delay set up by a rule-making process, writing: “A review of the tedious multi-step process required to enact an emergency rule illustrates why the Legislature authorized DHS to issue statewide orders to control contagion.”

State Assembly Speaker Robin Vos and Senate Majority Leader Scott Fitzgerald, both Republicans, said in a joint statement that they’re confident businesses can safely reopen by following guidelines calling for letting workers stay home if they’re sick, making workers wash their hands and implementing telework and social distancing and postponing travel and events.

“This [decision] does not promote people to act in a way that they believe endangers their health,” they said.

Evers first issued a stay-at-home order in March that closed schools and nonessential businesses. The closures battered the state economy, but Evers argued they were necessary to slow the virus’ spread. The order was supposed to lift April 24, but Palm, an Evers appointee, extended it to May 26.

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