Wisconsin Supreme Court Strikes Down Stay-at-Home Order

The Wisconsin Supreme Court on Wednesday struck down Gov. Tony Evers’ extension of the state’s stay-at-home order, agreeing with Republican legislators that they need to have a voice in setting statewide measures to limit the spread of the coronavirus. 

Evers’ stay-at-home order was first issued on March 25, prohibiting most travel and shutting down nonessential businesses. Following the guidance of state health officials, he has since extended it twice, most recently through May 26. All measures of the statewide order have now been invalidated by the 4-3 ruling, which was issued by the court’s conservative majority,  leaving decisions about stay-at-home orders, protocols for reopening businesses, and requirements for masks at least for now in the hands of cities and counties.

The governor on Wednesday night said that he feared the ruling will lead to more people getting sick in the state, which already has more than 10,900 cases and at least 421 deaths. “We’re the Wild West,” Evers said during an appearance on MSNBC. “There are no restrictions at all across the state of Wisconsin. … We’re just leaving it open. We’re going to have more cases. We’re going to have more deaths. And it’s a sad occasion for the state.”

Republican state lawmakers have long sparred with Evers over his executive powers, successfully limiting some of them before he took office earlier this year. 

During the high court’s hearing about the challenge to the stay-at-home order brought by Republican legislators, justices questioned whether State Health Secretary Andrea Palm had the authority to implement statewide restrictions on people’s movements. The court eventually ruled Palm should have consulted members of the state legislature before issuing any orders for the state. “We do not conclude that Palm was without any power to act in the face of this pandemic,” the majority opinion reads. “However, Palm must follow the law that is applicable to state-wide emergencies.”

Republican members of the legislature, along with President Trump, celebrated the ruling. “[Wisconsin's] Democrat Governor was forced by the courts to let the state open,” Trump wrote on Twitter. “The people want to get on with their lives. The place is bustling!”

The three dissenting justices on the court, including one conservative, seemed to agree with Evers’ assessment that the decision will harm public health. “This decision will undoubtedly go down as one of the most blatant examples of judicial activism in this court’s history,” Justice Rebecca Dallet wrote in her dissent. “And it will be Wisconsinites who pay the price.”

Within hours of the ruling, some businesses announced that they were immediately reopened. Patrons flooded some reopened bars and taverns, many of them without masks and virtually none of them practicing social distancing from each other. Some bars established additional cleaning protocols or spaced tables farther apart, but there are no statewide guidelines for how to reopen safely. In some states, for example, officials are allowing restaurants to reopen, but limiting capacity in order to create space between tables. 

Evers seemed particularly worried about how the hodgepodge of county and city stay-at-home orders and mandates for businesses will impact companies across the state in different ways. Bars and other establishments that have been waiting eagerly to get back to work will now have to consult a shifting landscape of local regulations to determine if it is legal to open their doors again and, if so, what new measures they must take to make the experience more safe for customers and staff. “Different counties are saying, ‘Bring it on.’ Other counties are saying, ‘No, we don’t want this to happen,’” Evers said. “So suddenly it’s a 72-county affair, which is going to be very confusing to people in the state."

Cities and counties sprung into action on Wednesday night to clarify whether or not their local orders regarding the pandemic would remain in place after the statewide order was removed. The state’s largest cities and counties, including Milwaukee, Kenosha, Racine, and Dane County, which contains the capital city of Madison, have all implemented or extended local orders that contain part or all of the statewide measures put in place by Evers.

In Brown County, which includes Green Bay, Public Health Officer Anna Destree released a statement saying their approach would not change with the Supreme Court ruling. "This virus knows no boundaries, including county lines, and the most effective way to prevent, control and suppress Covid-19 is for state officials and the state legislature to work together and implement a statewide approach,” she said. “That has not occurred, and therefore reasonable and necessary local actions must be taken … It would be irresponsible to do otherwise.”

Some county leaders, including in more rural areas like Winnebago, have announced they will not be implementing local measures, saying that “people wouldn’t be receptive.”

Wisconsin is the first state where the state Supreme Court ruled to strike down a stay-at-home order. Similar legal challenges have arisen in other states, including Illinois, California, Kentucky, Washington, Pennsylvania, and Michigan, although none of them have proved successful. State Supreme Courts have also considered challenges of local county stay-at-home orders, like one case in Texas that similarly proved unsuccessful.

As Wisconsin prepares for a patchwork of reopening procedures across the state, Evers issued a warning to residents on Twitter late Wednesday night. “Just because the Supreme Court says it’s okay to open, doesn’t mean that science does,” he wrote. “We need everyone to continue doing their part to keep our families, our neighbors and our communities safe by continuing to stay safer at home, practice social distancing, and limit travel.”