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    Wisconsin Legislature sues to stop Governor’s Stay-at-Home Order

    Wisconsin Legislature sues to stop Governor’s Stay-at-Home Order

    “an unelected, unconfirmed cabinet secretary has laid claim to a suite of czar-like powers—unlimited in scope and indefinite in duration—over the people of Wisconsin…. [B]y the time the Secretary sees fit to lift her decree… [o]ur State will be in shambles….”

    There is a still small, but rising, number of lawsuits seeking court intervention to address state and local excesses in ordering varying degrees of lockdown in response to the Wuhan coronavirus pandemic.

    We previously covered the Kentucky and Mississippi religious freedom cases.

    U.S. Attorney General William Barr also has expressed concerns with the more general nature of some lockdowns, suggesting they risk becoming ‘house arrest‘ orders, a punishment ordinarily reserved for those convicted of crimes after due process of law, or imposed under quarantine authority for those who are themselves ill and contagious. Home confinement of an entire population, most of whom are not ill or contagious, raises serious constitutional issues.

    The Republican-controlled Wisconsin Legislature has just filed suit, going directly to the Wisconsin Suprem Court, seeking to prevent a second lock down order from liberal Governor Tony Evers. Wisconsin Channel 3000 reports:

    Speaker Robin Vos and Senate Majority Leader Scott Fitzgerald announced Tuesday that the Wisconsin Legislature is pursuing legal action against Gov. Tony Evers’ extension of the Safer at Home order.

    The Republican leaders asked the state Supreme Court to block an extension of the Democratic governor’s stay-at-home order. The lawsuit was expected after Evers’ health secretary Andrea Palm last week ordered nonessential businesses to remain closed until May 26.

    The state Supreme Court announced Tuesday afternoon that DHS officials have until 4 p.m. on April 28 to file a response to the Legislature’s petition and motion.

    The Petition (pdf.) and Motion for a Temporary Injunction (pdf.) raise a series of issues, as also described in a Memorandum In Support of the Petition (pdf.):

    I. Whether the Department of Health Services (“DHS” or “Department”) violated § 227.24, governing emergency rules, by issuing Emergency Order 28 (the “Order”) without complying with Section 227.24’s procedures.
    II. Even if the Department did not violate § 227.24, whether Emergency Order 28 exceeds the Department’s authority by closing all “nonessential” businesses, ordering all Wisconsin persons to stay at home, and forbidding all “nonessential” travel.
    III. Even if the Department did not violate § 227.24, whether the Department acted arbitrarily and capriciously in issuing Emergency Order 28.
    IV. Whether a temporary injunction should be issued because Emergency Order 28 is unlawful and the Department’s failure to comply with Section 227.24 has irreparably harmed the Legislature by depriving it of the ability to exercise its statutorily prescribed oversight of an unprecedented administrative rule affecting the lives of millions of Wisconsinites.

    Notice the focus on statutory executive authority and procedural requirements, which may be an important avenue to be pursued in similar lawsuits.

    Here is an excerpt from the Introduction:

    Purporting to act under color of State law, an unelected, unconfirmed cabinet secretary has laid claim to a suite of czar-like powers—unlimited in scope and indefinite in duration—over the people of Wisconsin. Per her decree, everyone in the State must stay home and most businesses must remain shuttered (with exceptions for activities and companies arbitrarily deemed “essential”). These restrictions apply not only to metropolitan areas with more COVID-19 cases but also to rural counties with few or no known cases. Just as troubling, the Secretary asserts that her go-it-alone shutdown authority has no expiration date—making it greater than even the Governor’s emergency powers. To be sure, Emergency Order 28 says it terminates on May 26, but nothing suggests that it won’t be extended again. Perhaps it will even run into 2021. In any case, by the time the Secretary sees fit to lift her decree (be it in five weeks or eight months), many Wisconsinites will have lost their jobs, and many companies will have gone under, to say nothing of the Order’s countless other downstream societal effects. Our State will be in shambles….

    Incredibly, the Secretary took this unprecedented action without following any of our State’s requirements for rulemaking, while also intentionally waiving any reliance on the Governor’s emergency authorities, set to expire before this Order. If a single bureaucrat can evade the controls and accountability measures that the Legislature has enacted to control agency overreach simply by labeling what is obviously an emergency rule a mere “order,” then all of the reforms that the Legislature has put in place, and which this Court has interpreted and enforced over the years, are a meaningless, dead letter—in their most consequential application….

    The Legislature respectfully requests that this Court issue an order temporarily enjoining enforcement of Emergency Order 28, because it is an improperly promulgated rule under Wisconsin Statutes § 227.24, and because it exceeds the Department’s authority under § 252.02 and is arbitrary and capricious in violation of § 227.57(8) to the extent it confines all residents to their homes, prohibits all private gatherings, broadly restricts travel, and closes all businesses deemed nonessential.
    The Legislature also respectfully suggests that this Court stay enforcement of its injunction for a period of six days, to allow DHS sufficient time to promulgate a new emergency rule consistent with Wisconsin law (a process that it should begin undertaking as soon as this filing is served on them). Such a stay would fairly accommodate the parties’ mutual interest in preserving the status quo and ensuring no disruption to the State’s efforts to control the spread of COVID-19 while DHS undertakes steps to comply with all applicable statutes.2

    Again, note that the legislature is not saying the state has no authority to enact health-protections measures, but disputes the authority to enact a sweeping stay-at-home order.

    The respondents have until 4 p.m. on April 28, 2020, to file a response.

    Meanwhile. Evers is claiming this is just a legislative power grab:


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    Seems to me the governor didn’t want to damage himself politically so he had his Health Secretary to the dirty deed.

    Seems to me that we all have to make our way through this ourselves.
    I’ll be damned if I will entrust my life to the Government.
    I’ll go to work when I feel like it.
    ( 7 days right now )
    I’ll look out for my own safety, and keep my distance.
    If there is someplace I don’t think I should go, I won’t.
    The Government is not my Parent.
    It is subservient to the Electorate.
    But, you wouldn’t think that by looking at it.

    texansamurai | April 23, 2020 at 9:32 am

    Only if the government has exceeded its statutory authority.

    do you have any comprehension of the “social contract”
    implicit in our constitution? and our similar state constitutions? government exists to serve the people, not to rule the people–when government(or a government officer)operates contrary to the will of the people it is not only our right to resist, it becomes our DUTY to resist– a much higher call–and replace that government/officer by peacable means if possible or other means if necessary

    do not live in wisconsin but if the good folks there are faced with some rogue bureaucrat that would trample on their rights will support their efforts to correct the situation by whatever means they see fit–not engage in some puling effort to interpret their state constitution for them

      Milhouse in reply to texansamurai. | April 23, 2020 at 11:00 am

      It depends on what the state constitution says. State legislatures, unlike the USA, are not limited to enumerated powers. They have a general police power that lets them make almost any law that they think the public interest demands, except those explicitly prohibited by the state or federal constitution, or by a valid federal statute.

    Vladtheimp | April 23, 2020 at 7:03 pm

    What an unusual State – the Legislature has sufficient votes to sue the Governor over an ultra vires act but can’t legislate to contravene it, or use the power of the purse to either defund it or defund one of the Governor’s pet projects unless he bends to the will of the Legislature?

    Here in Michigan, the Legislature doesn’t have the votes to do anything to stop the dead-eyed Empress of Lansing or her lesbian Kemosabe – High Ho Totalitarianism – Away.

    David R. Graham | April 24, 2020 at 2:52 pm

    Except in very rare instances, women are horrible line officers. They are often superb staff officers.

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