MADISON – Gov. Tony Evers has a steep challenge before him as his coronavirus response plan goes before the state Supreme Court, but also a glimmer of hope.
Conservatives who lead the high court have reliably ruled in Republicans’ favor for years, which would seem to limit the Democratic governor’s chances of persuading them his stay-at-home order should remain in place.
But some of those same conservatives have viewed the pandemic as a serious threat — one so grave that they suspended jury trials around the state and ordered judges to conduct their business remotely. In doing so, they cited the Evers administration’s emergency orders as a reason for overhauling how the court system operates.
Their willingness to do that gives Evers the opportunity to persuade them to let his stay-at-home order stand.
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Nonetheless, Evers’ chance of success may be slim. Republican lawmakers and conservative groups appear united in their effort to get the Legislature to have a say in what rules to impose on individuals and businesses to combat the virus that has sickened more than 6,000 Wisconsinites and killed more than 280.
Republicans who lead the Legislature last week asked the high court to block Evers’ stay-at-home order after he announced he was extending it until May 26. In a filing Tuesday afternoon, attorneys for Evers argued his administration has broad authority to protect public health during pandemics.
“These orders, and the actions of Wisconsin residents to fight the coronavirus, have been effective: at least hundreds, and quite possibly thousands, of lives have been saved,” Assistant Attorney General Colin Hector wrote in the brief.
Hector noted state law allows the Department of Health Services to “authorize and implement all emergency measures to control communicable diseases.” Most other states have similar provisions, which have been used to adopt restrictions elsewhere.
The court could decide as early as this week whether to take the case.
On Tuesday, an array of unions asked to intervene in the lawsuit, but the justices quickly rejected their request. The unions argued the Legislature didn’t have the ability to bring its lawsuit and contended the Evers administration has broad power to issue orders to protect public health.
The Republicans want the court to prevent the Evers administration from issuing orders on its own and instead write state rules on how to respond to the outbreak in conjunction with the Legislature.
Aides to Evers say that is impractical because establishing emergency rules takes weeks and lawmakers can easily block them. State rules are overseen by a committee that is co-chaired by Sen. Steve Nass, a Republican from Whitewater who has been one of the harshest critics of the governor’s plans.
Union attorney Lester Pines said Assembly Speaker Robin Vos, Senate Majority Leader Scott Fitzgerald and other Republicans already have the ability to have a say in the state’s response to the pandemic. But to do so they would have to work with Evers on legislation — something Pines said they’re unwilling to do.
“Speaker Vos and Majority Leader Fitzgerald don’t want to do that because if they do that they have to act like normal legislators and not like little dictators,” he told reporters on a conference call.
Asking to join the lawsuit were the Milwaukee Teachers’ Education Association, Madison Teachers Inc., Amalgamated Transit Union Local 998 and an arm of the Service Employees International union that represents health care workers.
While the unions’ attempt to join the lawsuit failed, their argument that the Legislature didn’t have the authority to file its lawsuit appeared to spur action.
Hours after the unions submitted their court filings, GOP leaders said they were getting approval for their lawsuit from a legislative committee in an effort to bolster their claim they have the power to bring the case.
Republican lawmakers have argued in other cases they have broad authority to take legal action to make sure they’re heard in court.
Also Tuesday, businesses represented by the Wisconsin Institute for Law & Liberty sided with Republicans in a friend-of-the-court brief. They argued Evers’ health services secretary, Andrea Palm, had gone too far by issuing orders that closed businesses and prevented in-person religious services.
“If it seems anomalous that a single government bureaucrat can unilaterally confine millions of Wisconsinites to their homes and shutter businesses indefinitely, that’s because it is,” attorneys for the businesses wrote. “Our Constitution does not permit the Legislature to empower an executive branch agency to do whatever it chooses for as long as it wants.”
Court adopts limits in face of COVID-19
In March, the Supreme Court voted 5-2 to suspend jury trials, with conservative Justices Rebecca Bradley and Daniel Kelly dissenting over concerns about interfering with the right to a speedy trial.
In determining that jury trials should be postponed, the majority cited emergency orders by the Evers administration and guidelines issued by President Donald Trump’s administration.
“The reason for these orders and guidelines is to avoid or decrease the transmission of COVID-19 from one person to another, as the disease may cause serious health consequences for the individual and may place undue strain on the health systems of this state and the country,” the majority wrote.
“Continuing to have jury trials would put members of the public, jurors, witnesses, law enforcement personnel, lawyers, judges, and court employees at an unacceptable level of risk to their health and for some at an unacceptable level of risk for the loss of their lives.”
The decision brought together three conservatives, Chief Justice Patience Roggensack and Justices Brian Hagedorn and Annette Ziegler, and two liberals, Justices Ann Walsh Bradley and Rebecca Dallet.
They suspended jury trials through May 22 — just shy of when Evers’ latest stay-at-home order is set to expire.
The same day they suspended jury trials, the justices unanimously issued an order requiring any hearings to be conducted remotely. On April 15, the court extended that order indefinitely, with Rebecca Bradley dissenting because she thought the requirement for remote hearings should end this week.
Because of those orders, the justices have not been holding arguments in person. Now, at the request of Republicans, they are considering whether Evers can put in place similar restrictions for private businesses.
Evers has not fared well before the court in the past. In a matter of hours, the court’s conservatives knocked down Evers’ attempt to postpone the April 7 election And last year the high court upheld lame-duck laws limiting the governor’s powers.
Contact Patrick Marley at firstname.lastname@example.org. Follow him on Twitter at @patrickdmarley.
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