Jeramey Jannene

Supreme Court Strikes Down “Safer at Home”

Decision goes into effect immediately. Milwaukee's order remains in effect.

By - May 13th, 2020 06:17 pm
The Wisconsin Supreme Court debates the "Safer at Home" case. Image from the Wisconsin Supreme Court Zoom video feed.

The Wisconsin Supreme Court debates the “Safer at Home” case. Image from the Wisconsin Supreme Court Zoom video feed.

The Wisconsin Supreme Court struck down Department of Health Services Secretary-designee Andrea Palm‘s “Safer at Home” extension Wednesday afternoon.

The order, championed by Governor Tony Evers, closed all but “essential” businesses and banned public gatherings in an attempt to slow the spread of COVID-19.

On a 4-3 vote, four of the five conservative justices, Chief Justice Patience Roggensack and justices Rebecca Bradley, Daniel Kelly and Annette Ziegler sided with the Republican lawmakers that brought the suit.

Conservative justice Brian Hagedorn, a former attorney for Governor Scott Walker, wrote a dissent joined by liberal-leaning judges Ann Walsh Bradley and Rebecca F. Dallet.

The order goes into effect immediately.

The City of Milwaukee, under Health Commissioner Jeanette Kowalik, previously issued its own emergency order that did not have an expiration date. Mayor Tom Barrett said Wednesday afternoon, before the court ruled, that city was looking at issuing a new order.

Wisconsin was one of 43 states to be locked down by a Governor or gubernatorial appointee. According to the New York Times, the majority of those orders have been lifted or are in the process of being lifted. Evers and Palm, through additional orders, had loosened restrictions in recent days, including allowing retail stores to open.

Roggensack wrote that Palm did not follow state law in promulgating the order and its penalties through the Legislature. “Because Palm did not follow the law in creating Order 28, there can be no criminal penalties for violations of her order,” wrote the Chief Justice.

“This decision will undoubtedly go down as one of the most blatant examples of judicial activism in this court’s history. And it will be Wisconsinites who pay the price,” wrote Dallet in her dissent.

Hagedorn wrote that the court failed to provide guidance to Palm and others on what the emergency powers bestowed on the Department of Health Services mean.

“The Legislature may have buyer’s remorse for the breadth of discretion it gave to DHS in Wis. Stat. § 252.02. But those are the laws it drafted; we must read them faithfully whether we like them or not,” wrote Hagedorn.

Hagedorn’s dissent drew criticism from conservative justice Rebecca Bradley. “Justice Hagedorn’s 53-page opinion contains no constitutional analysis whatsoever, affirmatively rejects the constitution, and subjugates liberty,” wrote Bradley.

The lawmakers that brought the suit had originally asked for a stay, or delay, in implementing any ruling from the court, but the court declined to grant one. But six of the seven justices backed one. The holdout? Kelly.

“However, more than two weeks have passed since we began our consideration of this case. Therefore, we trust that the Legislature and Palm have placed the interests of the people of Wisconsin first and have been working together in good faith to establish a lawful rule that addresses COVID-19 and its devastating effects on Wisconsin. People, businesses and other institutions need to know how to proceed and what is expected of them. Therefore, we place the responsibility for this future law-making with the Legislature and DHS where it belongs,” wrote Roggensack with backing from Bradley, Ziegler and Kelly in the majority opinion.

In an additional opinion, Roggensack wrote that she would like to have seen the order stayed until May 20th, but said she trusted that the Legislature and Governor would quickly work to implement a new rule.

Ziegler also wrote a dissent advocating for a stay, following the guidance of Dr. Anthony Fauci, and found backing from Rebecca Bradley.

Hagedorn, in his dissent backed by Dallet and Ann Walsh Bradley, also backed a stay.

“If you are confused, you are not alone,” wrote Ziegler. “So, is there
a stay or isn’t there? It can’t be both ways.” She wrote that the plaintiffs need to be careful what they wished for.

Justice Daniel Kelly was defeated by Jill Karofsky in the April 7th Spring Election, but Karofsky will not take her seat on the court until August 1st.

Read the full ruling.

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Categories: Health, Politics

5 thoughts on “Supreme Court Strikes Down “Safer at Home””

  1. George Wagner says:

    To be expected.
    However, Haggedorn may be more independent from Republican-think than we previously thought. Perhaps a slightly hopeful sign.

  2. jnor says:


    Any bar, any restaurant that opens now (far too soon)?

    I’ll never go there again.

    Meanwhile, I’m staying home. They can open–they can’t force customers to go out.

  3. Jeffjay60 says:

    I ask others to join me in continuing to stay at home, supporting our closed businesses by taking advantage of whatever services they can safely provide and observing social distancing practices when we are outside of our homes.

  4. danlarsen7007 says:

    Congrats to Brian Haggedorn for not being a rubber stamp for Fitzgerald and Vos. An “emergency order” is not a “rule” and should not be subject to the bureaucratic flow of the rules approval. The Supreme Court got this one wrong and the four in majority need to find out how wrong it was the next time they’re up for re-election. (Except for Kelley…he’s already out. Looks like this is his parting shot!)

  5. Day el B says:

    Political posturing gone wrong by (vos & fitzgerald) and now the whole state will suffer the consequence. Evers’ had a plan in place with very detailed criteria, following Federal guidelines.

    WI has met all but 1 of the criteria, due to the Stay at Home order working, and would likely have met the final one within the next week.

    This is why the republicans wanted the 1 week stay on lifting the order, so they could tell their supporters that they won, while doing nothing. No plan, no alternative, nothing, just letting the well thought out plan run its course.

    Now they have the chaos of no plan at all, with cities and counties basically replicating the order that was already in place.

    It seems like coming up with an alternative plan in advance would have been a good idea when they started this mess.

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