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Court strikes down SaferAtHome extension

The Brillion News

MADISON – The Supreme Court of Wisconsin ruled that Emergency Order 28, issued by Wisconsin’s Health Services Secretary nominee Andrea Palm, was promulgated illegally.

In a 4-3 decision, the high court said the order, without going through a process outlined in state law that requires legislative approval, was null and void.

Palm’s order was promulgated, under orders from Governor Tony Evers, to succeed the governor’s own emergency order that expired on May 11.

The governor’s order could have been extended with legislative consent, but Evers sought no participation in the process by the Republican-controlled legislature.

In its decision, the majority called “chilling” the claim by the attorney for Palm that the secretary has the authority to arrest and imprison anyone engaging in lawful acts that the secretary bans “in her sole discretion.”

The decision also quoted from Thomas Paine’s 1776 tract named Common Sense. It reads: “In America the law is king! For as in absolute governments the king is law, so in free countries the law ought to be king; and there ought to be no other.”

The majority opinion concluded that the Palm order is unenforceable.

Justice Rebecca Grassl Bradley went further in her own concurring opinion: “We can never ‘allow fundamental freedoms to be sacrificed in the name of real or perceived exigency’ nor risk subjecting the rights of the people to ‘the mercy of wicked rulers, or the clamor of an excited people.’ Fear never overrides the Constitution. Not even in times of public emergencies, to even in a pandemic.”

Evers said the result of the court’s decision would be “chaos.”

The final decision broke along conservative-liberal lines. The high court has a 5-2 conservative majority, but conservative Justice Brian Hagedorn dissented from the majority opinion, and won praise from both conservative and liberal interests for his 51-page opinion.

He said the case was not about the constitutional limits on executive power, nor about refereeing a battle between the executive and legislative branches of government.

Instead, he defined the two questions before the court: whether Palm’s order needed to be an administrative rule requiring legislative approval, and whether Palm’s order exceeded her statutory authority.

He concluded that the answer was “no” in both cases.

“It is without doubt that the strictures of the constitution must be diligently defended during the crisis,” Hagedorn said.

But he said the high court should not permit tyranny by either the executive branch or by the legislature.

Assembly majority leader Jim Steineke, R-Kaukauna, said the legislature had offered, for several weeks, to meet with Evers to work out an emergency rule that had the legislature’s backing, but the Evers administration refused to meet, claiming it had the power to act without legislative consent by extending the SaferAtHome orders through Palm's Emergency Order 28..

The net effect of the court’s ruling on Wednesday was to say to the acting secretary of Health Services: “No you don’t.”

The entire 161-page file that includes the majority opinion and both concurring and dissenting opinions is attached here for your reading pleasure.

2020AP765 WI Supreme Court decision
Download PDF • 784KB


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