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Last night, the Supreme Court of Wisconsin released its opinion in Wisconsin Legislature v. Palm — and threw the state into chaos.

Last month, the Wisconsin Department of Health Services (also called DHS and not to be confused with the fascist federal Department of Homeland Security) issued a stay home order that closed schools and businesses and instructed residents to stay home unless the travel is essential. The Wisconsin GOP, known the world over for being a freedom-loving bunch (unless you're a woman, a person of color, or someone who wants to exercise their constitutional right to vote), filed suit.

Yesterday, the conservative majority of the state's highest court concurred with their Republican overlords in a 4-3 decision, declaring the stay-at-home order illegal. Because we must ensure that everyone can exercise their constitutional right to spread a deadly disease.

To make things even more delightful, the deciding vote was cast by Justice Daniel Kelly, a lame duck who lost reelection last month by 10 points. Another win for democracy!

And the cherry on top? The court held oral arguments, deliberated, and released its decision ... remotely.

You know, to stay safe.


Here's the deal

On March 20, Wisconsin Gov. Tony Evers issued Executive Order 72, declaring the coronavirus pandemic a public health emergency. Rather than issuing a shut-down order himself, he directed DHS to take "all necessary and appropriate measures to prevent and respond to incidents of COVID-19 in the State." At least until yesterday, Wisconsin law gave a lot of power and discretion to the health department to limit outbreaks and pandemics.

Pursuant to Evers's order, DHS Secretary-designee Andrea Palm issued Emergency Order 28, a stay-at-home order that ordered schools and non-essential businesses closed and instructed people to stay at home except for essential travel.

At oral arguments last week, we got a preview of just how dumb and bad this was going to be. As summarized by Ian Millhiser for Vox,

when a lawyer defending the stay-at-home order pointed out that there was recently an outbreak of coronavirus in Brown County, Wisconsin, Chief Justice Patience Roggensack dismissed the significance of that outbreak because it primarily impacted factory workers.

"These were due to the meatpacking, though," Roggensack said. "That's where Brown County got the flare. It wasn't just the regular folks in Brown County."

Ah, the GOP: the party of the working class.

And that's not all!

At that same oral argument, Justice Rebecca Bradley compared the state's stay-at-home order to "'assembling together and placing under guard all those of Japanese ancestry in assembly centers' during World War II."

Yeah, that's right. A justice on the highest court in the state of Wisconsin, in 2020, compared a generally applicable shut-down order attempting to save lives during a deadly global pandemic to the US sending people of Japanese ancestry to concentration camps during World War II.

Not all of the court's conservatives bought the legislature's bullshit, however. Conservative Justice Brian Hagedorn, former chief legal counsel to Scott Walker, sided with the court's traditionally liberal wing in voting to uphold the order, writing:

It is without doubt that the strictures of the constitution must be diligently defended during this crisis; the judiciary must never cast aside the law in the name of emergency. But just as true, the judiciary must never cast aside our laws or the constitution itself in the name of liberty. The rule of law, and therefore the true liberty of the people, is threatened no less by a tyrannical judiciary than by a tyrannical executive or legislature. Today's decision may or may not be good policy, but it is not grounded in the law.

Had this case been heard three months from now, it probably would have gone the other way. Justice Daniel Kelly, who recently lost reelection, sided with the majority. He is set to be replaced with liberal Justice-elect Jill Karofsky, who almost certainly would have voted to uphold the order. However, Justice Karofsky won't take her seat on the court until August, so until then, the state is pretty fucked.

According to the court, what's supposed to happen now is the legislature working with the governor to come up with a new plan. You know, the same legislature that immediately adjourned — literally within seconds — when Evers called a special session to deal with the issue of holding the state's primary election in the midst of a pandemic.

What could possibly go wrong?

Can you say "judicial activism"?

And dumb judicial activism, at that.

Despite the cries of "FREEDOM!" from the Wisconsin GOP and the justices in the majority, this case is actually about administrative law, not constitutional issues. According to the court, Palm issued an "order" when she should have issued a "rule."

This distinction isn't meaningless. A state agency can issue an "order" that goes into effect immediately. But, as the legislature acknowledged at oral argument. promulgating a "rule," even using emergency procedures, takes an absolute minimum of 12 to 14 days because of procedural hurdles.

Ignoring the fact that Wisconsin law was actually written to give DHS broad powers "to control outbreaks and epidemics," including "clos[ing] schools and forbid[ding] public gatherings in schools, churches, and other places," the court was like, "Nah. SEPARATION OF POWERS! FEDERALISM! UNELECTED OFFICIALS! SOMETHING SOMETHING FREEDOM TO GET COVID AND DIE! OBAMA!" (Okay, maybe it didn't actually reference Obama.)

So what, exactly, is the health department's authority during this global pandemic? LOL, we still don't know! After deciding that DHS had exceeded its authority, the court said:

We do not define the precise scope of DHS authority under [the relevant statute] because clearly Order 28 went too far.

Oh, okay then.

Schrodinger's stay

(Or, as Ian Millhiser called it, Schrodinger's vote.)

One of my favorite parts of this decision is that it doesn't make it clear when it goes into effect.

In the lawsuit, the legislature took the weird ass position that the DHS order was illegal and the court should strike it down, but also it should issue a weeklong stay of their order so the legislature could work with Evers on a solution, basically saying, "This is illegal but you should let it continue for a while."

Chief Justice Patiences Roggensack, who herself wrote the majority opinion, also wrote a separate concurrence (which no, is not normally a thing). In the majority opinion, Roggensack did not grant a stay. In her concurrence, Roggensack wrote that, personally she, would grant a stay. And if Roggensack's concurrence meant she was voting in favor of a stay, there were enough votes for a stay, so it should have been granted.

So is there a stay of the decision or not?

Ehhhhh, no one really knows.

Justice Ann Walsh Bradley noted this dumbfuckery in her dissent, writing:

Chief Justice Roggensack needs to clarify in an opinion whether she is or is not voting for a stay of the majority's decision. If her concurrence is to be interpreted as merely a lament that she would stay it, then such a lament rings hollow. She can stay the immediate effect of the majority opinion.

In a court of seven, it takes four votes to form a controlling majority on an issue. Chief Justice Roggensack provides the fourth vote to form a majority denying a stay. Without her vote there would be only three votes and the declaration of rights would not have immediate effect. However, assuming Chief Justice Roggensack is actually voting for a stay, as her concurrence seemingly indicates, there appear to be four votes for issuing a stay[.] So, is there a stay or isn't there? It can't be both ways.

Despite being called out by her colleagues in a published dissent, Justice Roggensack decided to just do it and be legends, man, letting everyone decide for themselves what should happen next.

WTF happens now?

Chaos and a huge spike in COVID-19 cases, probably.

Despite the ambiguity of Schrodinger's stay, it looks like everyone has decided that the order went into effect right away. The Wisconsin Tavern League encouraged bars to "OPEN IMMEDIATELY" — and some of them did. Photos and videos circulating on social media showed packed bars within hours of the the court's order.

And shitheads around the country rallied around the stupidity, calling for MOAR LAWSUITS to help the coronavirus spread. Naturally, the asshole-in-chief took to Twitter to gloat.

So that's all just great.

Governor Evers, for his part, is ... not pleased.


So right now, it looks like there is no statewide order in place to deal with closures during this pandemic. Some parts of the state, however, have decided they don't want their residents to die. Several cities and counties have already issued their own orders, including (as of Thursday morning) the city of Milwaukee, Milwaukee County, Dane County, Brown County, the city of Racine, and Kenosha County.

Since it seems unlikely that the bootlickers in the Wisconsin legislature are going to grow consciences any time soon, I guess we have to hope that more local governments around the state will step up to fight for their people to stay alive.

Here is the opinion, in all its glory:

[ Vox ]

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Jamie Lynn Crofts
Jamie Lynn Crofts is sick of your bullshit. When she’s not wrangling cats, she’s probably writing about nerdy legal stuff, rocking out at karaoke, or tweeting about god knows what. Jamie would kindly like to remind everyone that it’s perfectly legal to tell Bob Murray to eat shit.
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