Liberated Wisconsin?


I’m just taking a look at yesterday’s opinion from the Wisconsin Supreme Court which overturned Governor Tony Evers’ stay-at-home order. It’s surprising that most of the news articles don’t link to the public document, but prefer to highlight the political dynamic, rather than the Court’s reasoning. I was curious to get beneath the headlines a little bit to see how the Court justified a ruling that could cost people their lives.

Chief Justice Roggensack writes for the majority in a 31 page opinion, and also writes a separate concurrence. I’ve never seen that before, but it appears to be a procedural matter involving an injunction request that is part of the legislature’s case against the Governor.

A second concurrence brings out the more political nature of the Court’s decision:

The people of Wisconsin never consented to any elected official, much less an unelected cabinet secretary, having the power to create law, execute it, and enforce it. 

See Paragraph 66. Any opinion that starts like this is unabashedly partisan. To say that the law is defective because it is being promulgated and enforced by an “unelected” official is beyond disingenuous. The citizens have authorized Governor Evers to select staff that will carry out his policies. Of course Judge Bradley knows that, but she just can’t help jabbing an elbow. That’s when you know it’s political.

But let’s get into the majority opinion, which has the operative part of the Court’s decision making. The two grounds cited for overturning the law are the Health Secretary’s failure to properly follow procedure in the rulemaking and the law’s substantive overreach. No surprise that these are the headlines.

If the decision turned purely on procedural grounds, then the Secretary could simply fix the problem and re-enact the law the next day. The part I’m focusing on for the moment is the majority’s analysis under Wisconsin Statutes Section 252.02(6), which states that the Department may “authorize and implement all emergency measures to control communicable diseases.” Seems like that’s the important point here.

At Paragraph 27 of the Opinion, the Court dismisses the Secretary’s justification that the strict Order that it is only intended to respond to the current situation. The Court reasons that the Department’s use of benchmarks for re-opening Wisconsin (as opposed to specific dates) means that the rule is completely open-ended.

But the duration complaint is not the Court’s only concern. The majority also emphasizes that Section 252.02(6) is not intended to give unlimited power. Well, duh! The Court talks about giving citizens notice before they can be charged with criminal violations, but then relies on procedural arguments to justify the conclusion that notice is lacking here. Part of the Court’s notice argument is the subjective conclusion that the emergency order’s provisions are not stated with sufficient specificity. Again, that is really not an ‘overreach’ argument. Ambiguity could, theoretically, be fixed.

The Court does indulge in some substantive analysis, for example, on the issue of quarantine. Wisconsin’s communicable diseases law authorizes quarantining of infected individuals. The Court states that the Governor’s lockdown order is a quarantine of everyone. There appears to be no mention of the facts that (a) testing is insufficient and (b) asymptomatic carriers can spread the disease as easily as those with symptoms. So… uh… whatever, I guess.

Which leads us to Paragraph 55, where the Court declares it need not define the limit of the Department’s emergency powers. It is sufficient to simply say that they have been exceeded in this case. Thanks! I guess we’ll be back when the Governor tries to correct the Order and the legislature files suit again and asks for another injunction. Not like there’s a public; health crisis going on or anything.

I hope there is not too much human suffering that results from this decision. Politically, the Court will take heat from the left, but the legislature that brought the case. And that group is composed of people who do not have to stand for statewide elections. It would have been nice if the state’s Supreme Court had not so readily decided to do their bidding. 


About Mike Pomerantz 29 Articles
Mike Pomerantz is, in no particular order, a political news junkie, an attorney, a writer, a musician, a progressive, a parent, and a husband. He spent over twenty years practicing law in and around the City of Philadelphia as a civil litigator and trial attorney. In 2018 he began to consult on tech projects in cryptocurrency and artificial intelligence.

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