Dueling briefs in Supreme Court lawsuit to overturn Safer at Home

One side warns of tyranny, the other side says the Legislature lacks standing to sue

Protesters carried Working Lives Matter signs at the Reopen Wisconsin rally on April 24 (Photo by Henry Redman | Wisconsin Examiner)

The Wisconsin Supreme Court rejected a request by a group of labor unions on Tuesday to intervene in a lawsuit that seeks to overturn the extension of Gov. Tony Evers’ “Safer at Home” order. The unions argued that for their members — healthcare workers, teachers and bus drivers — continuing the shutdown of much of the state during the COVID-19 pandemic is a matter of “life or death.”

“Apparently the Supreme Court preferred to have just two parties [the Legislature and the Evers Administration],” the unions’ attorney, Lester Pines, said on Tuesday night. Unable to join the lawsuit, the unions will now file an amicus brief, he said. The Court has set a deadline of 4 pm on Wednesday for amicus briefs.  “By acting quickly, the Court has allowed the unions to timely request leave to make their arguments in an amicus brief,” Pines added.

Pines’ clients include the Milwaukee Teachers’ Education Association, Madison Teachers, Inc.,  SEIU Healthcare Wisconsin and Amalgamated Transit Union Local 998.

The Court has already accepted an amicus brief filed by the Wisconsin Institute for Law & Liberty (WILL) on behalf of the Independent Business Association of Wisconsin, Double Decker Automotive in Pleasant Prairie, and Shear Xcellence, a hair salon in Grafton, arguing that the Evers administration has come “perilously close” to tyranny in extending the Safer at Home order.

Wisconsin businesses have suffered significant financial harm during the shutdown, WILL’s brief states. It supports the Legislature’s argument that the Department of Health Services (DHS) is usurping legislative authority by extending the Safer at Home order.

“DHS’s position is that the Legislature has authorized it to do anything for as long as DHS deems necessary to control infectious diseases,” the brief states.

But, it adds, “‘Do whatever you think best’ is not a direction to carry out legislative policy but an unlimited license to create that policy.” 

“If DHS is right,”  the brief continues, “the Legislature has given a single agency the power to completely lock down the state – suspending civil liberties, forbidding almost all human interaction and halting commerce without limitation or guidance other than ‘control infectious disease.’ If that is not a violation of the separation of powers, nothing is. “

Acknowledging that some policies the Evers administration has pursued to control the spread of COVID-19 might be justified, WILL states in its brief, “The question becomes who gets to make such policy decisions, and how.”

On the other side, Pines argues that the Legislature does not have the authority even to bring its lawsuit to the Supreme Court under state law.

“This is the only case we have ever found, or ever seen, where the Wisconsin Legislature sued in its own name,” Pines said. Under state law, “the Legislature can’t even intervene into a case in its own name,” he added, calling it “hubris” that the suit was filed in the Legislature’s name, without a vote or a committee name attached, or any argument for why the petitioners had legal standing to be in Court.

Does the Legislature have standing?

Update: Shortly after the unions filed their motion to join the lawsuit, and raised the issue of standing, the Milwaukee Journal Sentinel reported “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.” 

Pines describes the move as “too little, too late.”

“They would have to amend their petition which will then require a new round of responses, unless the Court develops a new process on the spot,” he says. “Plus, for the Legislature to have standing, they need to pass a statute. A committee vote won’t cut it.”

“The ballot is an internal procedural issue for the Legislature to authorize retaining counsel and filing suit,” another attorney familiar with the case explains. “Standing is a distinct issue that depends on them convincing the court they have been harmed by DHS’s actions.”

When it comes to standing, the attorney explains,  “The issue here is how was the Legislature harmed? They insist that they have been denied a seat at the table (whatever that means in this context), but they can assert themselves by passing a law. So, why do they need the court’s help? “

Legislation vs. litigation

Nor has the Legislature come up with a plan for dealing with the pandemic before going to Court, Pines noted, disputing WILL’s argument that the Legislature should be the sole author of policies to deal with the pandemic. 

“They don’t want to pay attention to the experts in public health. They want to pay attention to their campaign donors — the people who keep them in office,” he said.

If the Legislature’s suit is successful, rather than coming up with a policy through a process of negotiation with Democrats in the Senate and Assembly and the governor, the Republican-dominated rules committee will be in charge, Pines pointed out.

(The Legislature argues that DHS failed to go through the normal administrative rule-making process, approved by legislative committee, before extending the Safer at Home order. Although DHS has statutory authority to issue an “order” to shut down public gatherings to stop the spread of infectious disease, the Legislature argues that the word “order” is ambiguous and DHS overstepped by failing to go through the regular process for administrative rules.)

‘Dangerous and premature’

At the union press conference, Amy Mizialko, president of the Milwaukee Education Association, accused GOP legislative leaders of “attempting a dangerous and premature return to a daily routine, despite the shortage of personal protective equipment, despite inadequate testing for public and healthcare workers and despite recommendations from public health experts to continue these safeguards that are keeping Wisconsinites safer at home.”

By bringing a separate, previous lawsuit to the state Supreme Court to overturn Evers’ order postponing in-person voting in the April 7 election, the Republican leaders of the Legislature put people in danger, union members said. Legislators’ recent comments supporting an accelerated opening of the state are worrying, they added.

During the press conference announcing the unions’ efforts to intervene in the case, Sandra Cooper, a Milwaukee bus driver and member of the Amalgamated Transit Union, acknowledged the economic strain created by the Safer at Home order.

Cooper said she loves driving her passengers to work, although fewer are riding the bus during the pandemic, either because they are abiding by the Safer at Home order, or because they have lost their jobs.

“They are hurting,” she said. “Over 22 million people filed for unemployment [nationwide] in the past few weeks alone. I can’t even wrap my mind around that. I hear that number and I think, ‘How are people actually going to survive this?’”

“A lot of people want to go to work right now because they have no money coming in, and they have a family to support,” Cooper added. “But it should not be a choice between your health or your livelihood. We should be able to protect people on both levels, their health and safety and their economic survival.”

“If you want to do something to help people, pass an additional stimulus act so that people can survive, staying at home,” Cooper said. “And workers like me on the front lines — we need more protection. We need face masks, gloves, cleaning supplies. We need adequate supplies that can keep us safe every day. And we need paid sick leave so we can keep doing our job.”

“This is not easy for anyone,” Cooper acknowledged, “but that’s why we have to work together as a community, so that we can contain this deadly virus and get back on track. To our legislators I say this: Stop playing politics and do the real work. Get people what we need to survive this.”

Evers has said he is “confident’ the Court will rule in his favor on extending Safer at Home. “We have the facts on our side,” he said during a DHS briefing. “We have the law on our side. And we have lots of opportunities to share with the Court where this type of action has taken place. So given that we have all those things on our side, I believe that our Court will see the wisdom in our position.”