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Wisconsin Supreme Court strikes down stay-at-home order

ASSOCIATED PRESS / APRIL 7
                                Voters observed social distancing guidelines as they waited in line to cast ballots at Washington High School while ignoring a stay-at-home order over the coronavirus threat to vote in the state’s presidential primary election in Wisconsin.
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ASSOCIATED PRESS / APRIL 7

Voters observed social distancing guidelines as they waited in line to cast ballots at Washington High School while ignoring a stay-at-home order over the coronavirus threat to vote in the state’s presidential primary election in Wisconsin.

The Wisconsin Supreme Court today rejected the extension of a stay-at-home order by Gov. Tony Evers, siding with Republican legislators in the state in a high-profile challenge of the emergency authority of a statewide official during the coronavirus pandemic.

Evers, a Democrat, had extended the prohibition on most travel and operations of nonessential businesses until May 26. But in a 4-3 ruling, the court said that the measure had exceeded the authority given to Wisconsin’s top health official under state law.

“This comprehensive claim to control virtually every aspect of a person’s life is something we normally associate with a prison, not a free society governed by the rule of law,” Justice Daniel Kelly wrote in a concurring opinion.

The ruling, Evers’ office said, appears to end statewide provisions that have required many Wisconsin residents to stay home. Within hours of the ruling, some taverns were making plans for reopening, the governor’s office said.

“This turns the state to chaos,” Evers said in an interview. “People will get sick. And the Republicans own the chaos.”

More than 10,000 cases of the coronavirus have been identified in the state, a New York Times database shows, and at least 421 people have died.

There have been legal challenges to stay-at-home orders in Michigan, California, Kentucky and Illinois, but none of those were successful in persuading a court to fully strike down the order, as the plaintiffs in the Wisconsin case were. Wisconsin’s stay-at-home order took effect March 25 and was extended by the governor April 16, leading to a protest at the state Capitol.

The ruling appears to leave Evers and Republican leaders of the state Legislature in a position of negotiating any next steps for limits on businesses amid the pandemic. But their work relations have been extraordinarily tense, and many observers said the possibility of fruitful negotiation seemed remote.

Evers, who has already announced plans for a gradual reopening of businesses, said that he hoped to work with Republican lawmakers on next steps but that, in the meantime, he hoped that Wisconsin residents would remain safe and at home.

“We are in a very perilous place,” he said.

Scott Fitzgerald, the leader of the Republican majority in the Wisconsin Senate, said that lawmakers had long been seeking a voice in the conversation about how to respond to the pandemic but that the governor’s office had, until now, kept them out of the process. “We’re more than willing to sit down with the governor,” he said.

For the moment, Fitzgerald said, residents would use their own judgment. “People understand, if you don’t want to go to church, you don’t go to church,” he said. “If you don’t want to go to work, you don’t go.”

For much of the last decade, Wisconsin, considered a swing state in November’s presidential election, has been riven by an intense partisan battle.

Republicans control the Legislature, so when Evers was elected governor in 2018, it set off a sharp battle over the state’s direction on all sorts of policies. Republicans had full control of the state before that, during a period in which they curtailed bargaining rights for many public labor unions and moved the state sharply to the right.

The Wisconsin Supreme Court, while officially nonpartisan, has long been sharply divided along conservative-liberal lines that are well understood by the state’s voters. Conservatives hold a majority on the court, and they will even after a new justice — a liberal challenger who upset Kelly this spring — is seated in August.

In the stay-at-home case, some justices asked tough questions of the lawyer defending Andrea Palm, the state’s top health official, during a 90-minute hearing conducted over video chat last week.

“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?” Justice Rebecca Bradley asked.

Later, the lawyer, Colin Roth, an assistant attorney general, argued that the Legislature had given Palm broad authority and that “people will die” if the justices struck down the order without anything replacing it.

The court ruling did not provide a mechanism for a stay so that Republicans and Democrats could reach a compromise on reopening Wisconsin, which the dissenting justices wrote could endanger residents.

“The lack of a stay would be particularly breathtaking given the testimony yesterday before Congress by one of our nation’s top infectious disease experts, Dr. Anthony Fauci,” one of the dissenting opinions said. “He warned against lifting too quickly stay-at-home orders.”

Rick Esenberg, the president of the Wisconsin Institute for Law and Liberty, which had filed an amicus brief siding with the Legislature, commended the court Wednesday.

“The court’s decision ensures that Wisconsin’s response to COVID-19 must involve both the executive and the legislative branch,” Esenberg said. “Wisconsin will be better for it. The grave nature of the pandemic cannot be used to subvert our very form of government.”

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