‘Blatant judicial activism’ as Wisconsin Supreme Court overturns Safer at Home

“It will be Wisconsinites who pay the price,” says one dissent

Chief Justice Patience Roggensack (photo from Wisconsin Eye video of oral arguments in Wisconsin Legislature v. Andrea Palm)
Chief Justice Patience Roggensack (photo from Wisconsin Eye video of oral arguments in Wisconsin Legislature v. Andrea Palm)

In a 4-3 decision, the Wisconsin Supreme Court on Wednesday overturned the extension of Gov. Tony Evers’ Safer at Home order by Department of Health Services Secretary-designee Andrea Palm. The order sought to prevent people throughout the state from gathering in large groups, going to school, church and restaurants, and otherwise participating in social contact that can promote the spread of COVID-19.

“This case is about the assertion of power by one unelected official, Andrea Palm,” Chief Justice Patience Roggensack wrote in the majority opinion. 

Joining Roggensack in the majority were justices Daniel Kelly, Rebecca Bradley and Annette Ziegler. Dissenting were Ann Walsh Bradley, Rebecca Dallet and Brian Hagedorn.

The majority opinion casts Palm as a dictatorial, power-grabbing “unconfirmed cabinet secretary” who has laid claim to “open-ended” power to violate the constitutional liberties of Wisconsinites.

Justice Rebecca Bradley (photo from Wisconsin Eye video of oral arguments in Wisconsin Legislature v. Andrea Palm)
Justice Rebecca Bradley (photo from Wisconsin Eye video of oral arguments in Wisconsin Legislature v. Andrea Palm)

A concurring opinion by Rebecca Bradley describes the danger of a DHS secretary “ordering the people of Wisconsin to follow her commands or face imprisonment for noncompliance.”

As she did during oral arguments, Rebecca Bradley invokes the internment of Japanese-Americans during World War II, and the role of the judicial branch in “protecting the people against tyranny.”

Lame duck Justice Daniel Kelly, who was defeated in the April 7 election, and will leave the court in August, stayed long enough to cast the deciding vote overturning Safer at Home, writing in his concurrence that Palm “has taken control of a stunningly broad swath of the lives and activities of every single individual and business in the State of Wisconsin.” 

Dictating ‘how to cough or sneeze’

Kelly writes that Palm is “dictating” that “everyone must comply with social distancing requirements, including minimum spacing between individuals, how to wash one’s hands, how to cough or sneeze, when to clean …”

Wisconsin Supreme Court Justice Daniel Kelly
Wisconsin Supreme Court Justice Daniel Kelly

“And she asserts that violations of her Order are punishable as crimes,” Kelly adds.

The portrait of Palm as a capricious tyrant threatening Wisconsinites with criminal penalties if they sneeze the wrong way ignores the public heath emergency that triggered her actions, lawyers for the other side say.

“It’s as if DHS issued this order just because they wanted to,” says attorney Lester Pines, who filed an amicus brief supporting Safer at Home on behalf of labor groups. “We’re in the middle of a plague. And if you just read the majority opinion, you don’t see a single thing that says, ‘This is why the Legislature gave this power — this happened in an actual pandemic.’”

Hagedorn’s dissent

In contrast, in his dissenting opinion, Justice Brian Hagedorn begins by setting it in the context of the pandemic.

Justice Brian Hagedorn
Justice Brian Hagedorn

“We are facing a unique public health crisis the likes of which few among us has ever seen,” he writes. “And the government response of shutting down businesses, travel and schools, forbidding private gatherings, and other such measures is a demonstration of government power the likes of which few among us have ever seen.” 

Hagedorn, a conservative who also parted ways with the conservative majority on the court in a case involving the effort to purge more than 200,000 voters from the rolls, argues that the Legislature does not even have standing to bring the case against Palm.

“We are allowing the Legislature to argue its own laws are unconstitutional, a legal claim it has no authority to make,” he writes. 

Worse, in striking down the order, the court “has failed to provide almost any guidance for what the relevant laws mean, and how our state is to govern through this crisis moving forward,” Hagedorn adds.

Chief Justice disagrees with herself

One of the most unusual aspects of the Supreme Court’s decision is that its author, Chief Justice Roggensack, also writes a concurring opinion in which she appears to disagree with her own conclusions. 

Roggensack writes in the majority opinion that the order must be overturned immediately, and denies a stay that the Legislature itself sought to delay enforcement of the court’s decision for six days in order to avoid a chaotic reopening of the state with no plan in place to prevent the spread of COVID-19. She then writes in her separate, concurring opinion, “I would stay future actions to enforce our decision until May 20, 2020.” 

“These positions taken in the majority opinion and the concurrence are fundamentally contradictory,” Ann Walsh Bradley points out in a dissent. “If you are confused, you are not alone.”

Justice Ann Walsh Bradley (photo from Wisconsin Eye video of oral arguments in Wisconsin Legislature v. Andrea Palm)
Justice Ann Walsh Bradley (photo from Wisconsin Eye video of oral arguments in Wisconsin Legislature v. Andrea Palm)

“Chief Justice Roggensack needs to clarify in an opinion whether she is or is not voting for a stay of the majority’s decision,” Walsh Bradley asserts, pointing out that if Roggensack were to vote for a stay, she and the three dissenting justices would form a majority and a stay would be issued.

Instead, Roggensack appears to be engaging in meaningless handwringing when she writes that she “would” stay enforcement of the court’s decision for a week.

Siding with leaders of the state Legislature who brought the case, the majority opinion states, “We conclude that Emergency Order 28 is a rule … and therefore is subject to a statutory emergency rulemaking procedure established by the Legislature.”

Because the order did not go through the legislative rulemaking process, it is “unenforceable,” the majority asserts, and is no longer in effect. 

The majority opinion reinforces legislators’ arguments that the Safer at Home emergency order is a rule because it applies to everyone in the state. 

Without getting into the details of the pandemic and the evolving public-health response, the majority opinion dwells on a 1979 case, Citizens for Sensible Zoning v. DNR, in which it held that a flood plain ordinance was a rule. 

A previous statute, according to the majority opinion, held that “an ‘order’ was a ‘rule’ when it met the statutory definition of a rule.”

The effect of the court’s decision is that the Republican-controlled Joint Committee on Administrative Rules, rather than DHS, will have to approve any further orders limiting public movement during the pandemic. And, because the Supreme Court declined to stay its own decision, that will have to happen while there is no public-health order in effect.

What’s the greater harm?

The contrast between the harm suffered by the Legislature, which says it was denied “a place at the table” in coming up with the Safer at Home order, and the harm to Wisconsinites exposed to COVID-19 now that Safer at Home has been overturned, is a sore point for the lawyers who filed briefs on behalf of frontline workers, the disabled and others who are worried about their health.

“This is a lawless decision,” says attorney Jeffrey Mandell, who filed a brief on behalf of health care workers and medical experts supporting Safer at Home. “It turns fundamental principles of constitutional structure, administrative law and statutory interpretation on their heads, all to reach a predetermined political outcome. It makes no allowance whatsoever for our current reality or the human costs of this political gamesmanship.”

“The positive thing you can see from the majority opinion for the people of Wisconsin who are going to get sick and die as a result of this instant recision,” Pines jokes darkly, “is that at least they can take solace from the fact that their death was in service of the Administrative Procedure Act.”

The court’s decision also ignores the “plain statutory language,” Dallet writes in a dissent. She quotes that language, which states that the DHS secretary has the authority to “promulgate and enforce rules or issue orders for guarding against the introduction of any communicable disease into the state, for the control and suppression of communicable diseases.” The statute adds that “Any rule or order may be applicable to the whole or any specified part of the state.”

Justice Rebecca Dallett (photo from Wisconsin Eye video of oral arguments in Wisconsin Legislature v. Andrea Palm)
Justice Rebecca Dallett (photo from Wisconsin Eye video of oral arguments in Wisconsin Legislature v. Andrea Palm)

Dallet points to “a basic tenet of statutory interpretation that we must read statutory language ‘to give reasonable effect to every word,’ and she quotes the late Supreme Court Justice Antonin Scalia, who wrote “Because legal drafters should not include words that have no effect, courts avoid a reading that renders some words altogether redundant.” 

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

Ruth Conniff
Ruth Conniff is Editor-in-chief of the Wisconsin Examiner. She formerly served as Editor-in-chief of The Progressive Magazine where she worked for many years from both Madison and Washington, DC. Shortly after Donald Trump took office she moved with her family to Oaxaca, Mexico, and covered U.S./Mexico relations, the migrant caravan, and Mexico’s efforts to grapple with Trump. Conniff is a frequent guest on MSNBC and has appeared on Good Morning America, Democracy Now!, Wisconsin Public Radio, CNN, Fox News and many other radio and television outlets. She has also written for The Nation, The New York Times, The Washington Post, and The Los Angeles Times, among other publications. She graduated from Yale University in 1990, where she ran track and edited the campus magazine The New Journal. She lives in Madison, Wisconsin with her husband and three daughters.