Wisconsin Supreme Court: Governor overstepped authority on COVID rule

MADISON, Wisconsin — For the second time in just over two weeks, the Wisconsin Supreme Court issued a rebuke of Gov. Tony Evers, this time saying his administration violated the law by regulating the size of public gatherings at businesses, restaurants and other venues as part of an effort to control the virus that causes COVID-19.

In a 4-3 ruling, the court held that Evers’ October 2020 restrictions on public gatherings at restaurants, businesses and other sites amounted to an administrative rule under Wisconsin law. As such, the regulations needed to be filed with the Wisconsin Legislature for oversight. Because that did not happen, “Emergency Order 3 was not validly enacted and was unenforceable,” read the court ruling, authored by Chief Justice Patience Roggensack. Both houses of the Wisconsin Legislature are controlled by Republicans. Evers is a Democrat.

Emergency Order 3 limited the size of indoor gatherings to 25 percent of a facility’s maximum capacity, or to 10 people if there is no set capacity. Places of worship were exempt from the order, although similar regulations on church gatherings have been enacted by local governments, including Dane County and the city of Madison. In court filings, the Wisconsin Department of Health Services maintains it also has legal authority to limit operations of schools and churches as part of efforts to control a pandemic. Those issues are being tested in another case with Catholic plaintiffs, and a ruling could be imminent.

The lawsuit that led to Wednesday’s ruling was originally filed by the Tavern League of Wisconsin. Pro-Life Wisconsin and the Pro-Life Wisconsin Education Fund, represented by the Chicago-based Thomas More Society, intervened as plaintiffs in the case. Pro-Life Wisconsin argued the restrictions on public gatherings did great harm to its operations and efforts to save the lives of preborn babies. They were joined as plaintiffs by Miki Jo’s Mix Up, a restaurant and bar in Amery, Wis. The case is Tavern League of Wisconsin v. Andrea Palm and Wisconsin Department of Health Services.

“We thank the Wisconsin Supreme Court for their prudent, decisive, and common-sense reading of the law as it was written. This rebuke of Governor Tony Evers’ abuse of power is a win for the people of Wisconsin,” said Dan Miller, state director for Pro-Life Wisconsin. “Those who love liberty are forever indebted to the Thomas More Society for their tireless work on this case. This case was not just about how the executive branch overreached its power in the name of public health, but how a handful of citizens and constitutional law experts stood up to tyranny and won.”

Andrew Bath, Thomas More Society executive vice president and general counsel, said the case shows that “no government is a rule unto itself.”

“The rights of Pro-Life Wisconsin and the other plaintiffs were violated when the Evers Administration engaged in dictatorial rule rather than follow the law,” Bath said. “Those rights have been vindicated by the Supreme Court, which today declared the administration’s illegal order to be neither ‘valid’  nor ‘enforceable.’ We hail the Court’s decision because the very notion of citizen self-government was at stake in this case.

“The outrageous fact that the Secretary-designee (Palm) included a punishment of civil forfeiture of assets for noncompliance with her excessive regulations shows that the move was more about absolute power than disease prevention,” Bath said. “As we have seen, the United States Supreme Court continues to protect rights guaranteed by the federal constitution – even in a pandemic. We are pleased that the Wisconsin Supreme Court has protected rights guaranteed by the state constitution and halted the administration’s attempt to do an end run around the people’s representatives in violation of Wisconsin law.”

Misha Tseytlin, attorney for Miki Jo’s Mix Up and its owner, Liz Sieben, said the ruling will serve as a check on government power. “As the Wisconsin Supreme Court powerfully showed this morning, a small, family-owned restaurant like the Mix Up can stand up to a powerful governor and attorney general and win when the law is on its side.”

Tseytlin is lead counsel in another key case where a Wisconsin government agency is accused of overreach for trying to shut down in-person classroom instruction in grades 3 through 12. Last fall, the Wisconsin Supreme Court issued a temporary injunction suspending the schools order issued in August 2020 by Public Health Madison & Dane County. The case, brought by St. Ambrose Academy of Madison, other schools and individual parents, will be a test of the use of unelected government power to restrict the operations of religious-based schools.

Rick Esenberg, president and general counsel for the Wisconsin Institute for Law & Liberty, said the key issue is if local health officials can close schools to respond to a pandemic. “We said they cannot,” Esenberg told Catholic World Report. “The Court said that we were likely to succeed on the merits and granted an injunction, but has not yet issued a final decision.” Esenberg’s firm represents some of the plaintiffs in the case.

On March 31, the Wisconsin Supreme Court struck down Gov. Evers’ statewide mask mandate and his repeated use of emergency orders to enact COVID-19 regulations. “The question in this case is not whether the governor acted wisely; it is whether he acted lawfully,” wrote Wisconsin Supreme Court Justice Brian Hagedorn, a frequent swing vote, opining for the court’s conservative majority. “We conclude he did not.”