By Thomas Barland, for the CVPost
A mid-May decision by the Wisconsin Supreme Court is the latest chapter in the highly publicized two-month struggle between Gov. Tony Evers and the state Legislature.
Evers, a Democrat, and the Republican-controlled Legislature have been at odds over voting dates and procedures during the COVID-19 pandemic and in regard to who has the power to establish rules governing quarantine while it lasts.
The GOP protagonists from the Legislature are Senate Majority Leader Scott Fitzgerald and Robin Vos, Speaker of the state Assembly. They were at odds with Evers over any change in voting dates for the Apr. 7 spring election and as to the terms of the self-quarantine and its ending date.
These conflicts have led – thus far – to court cases that were resolved only after one appeal was taken to the U.S. Supreme Court and two more went to the state’s high court. Evers lost, in all three cases.
A look at these cases may provide some insight as to the law’s expectations during the COVID-19 pandemic.
Election cases
The first case, brought in Federal District Court in Madison, sought to extend by six days the Apr. 7 deadline for the filing and counting of absentee ballots. The District Court went a step beyond that request and said that absentee ballots could be cast through Apr. 13 and would be counted if they were received by that date – six days after the actual day of the election.
On Apr. 6 – the evening before election day — the U.S. Supreme Court held 5-4 that the district judge exceeded his authority when he allowed absentee ballots to be cast after Apr. 7.
The second case has an unusual factual background.
At 1 p.m. on Apr. 6 – the day prior to election day – Evers issued an executive order seeking to change the date for in-person voting from Apr. 7 to June 9 because of the pandemic. His order also called the Legislature back into a special session on Apr. 7 “to consider and act upon legislation to set a new in-person voting date for the 2020 Spring election.”
The Legislature immediately filed a petition of appeal before the state Supreme Court which in turn gave Evers until 3:30 p.m. that same day to file a response. The Court issued its decision shortly before 5 p.m., enjoining (that is, nullifying) all of the executive order, with one exception.
The Court did not prohibit the governor’s call for the next day’s special session of the Legislature for the sole purpose of setting a new in-person voting date for the spring election.
The Legislature met as required on Apr. 7 but speedily ignored Evers’ request for a new election date. A quorum was not required and, with only a few legislators present, the two houses were called to order at 2 p.m. and immediately adjourned, ending the special session.
Most recent case
The third case – the state Legislature’s suit against officials of the Wisconsin Department of Health Services (DHS) – was argued before the state Supreme Court on May 5 and resulted in a 127-page opinion filed on May 13. That eight-day period is an extraordinarily short time in which to hear arguments and then issue an opinion.
The result is a turgid, rambling opinion that does more to confuse the reader than clarify. Three concurring opinions add little clarity.
The case involved the governor’s wish to extend the statewide “Shelter at Home” quarantine order for a month, until May 26. However, the extension order did not come directly from Evers (although he may well have had a hand in its creation) but rather from Andrea Palm, the secretary-designee of the state DHS.
She issued her order pursuant to the Wisconsin law relating to communicable diseases, which is part of the statutes setting forth the powers and procedures of the DHS.
During the oral argument on the case, Justice Rebecca Bradley, a conservative (not to be confused with Justice Rebecca Dallet, a liberal), suggested the stay-at-home order was a form of tyranny. Justices on high courts may ask extreme questions during oral arguments in order to test possible legal outcomes.
It was during this oral argument that Chief Justice Patience Roggensack – upon learning that a high percentage of the deaths at a Brown County meat packing plant were among Mexican and other Latin- American immigrants – said “The surge was due to the meatpacking. . . that’s where Brown County got the flare. It wasn’t just the regular folks in Brown County.”
Fifteen amicus curiae (friend of the court) briefs were filed by organizations for and against the extension, which had been in effect for more than two weeks by the time the case was decided.
That decision came on May 13 and was written by Roggensack. She found that Palm, in issuing her emergency order, did not follow the emergency rule order procedure as set forth in state law. Therefore, she wrote, Palm had exceeded her authority in regard to the scope of coverage and the breadth of punishment that she could impose on violators.
The vote on the case was 4-3, but its ideology was not entirely conservative versus liberal. The majority justices were all conservative, but one other conservative, Justice Brian Hagedorn, joined the liberals in dissent.
His dissent was 50 pages long. The two liberal justices, Dallet and Ann Walsh Bradley, joined in part of Hagedorn’s dissent. Ann Walsh Bradley wrote the principal dissent, joined by Dallet, who also wrote her own dissent in which Ann Walsh Bradley joined.
Of some note is that Justice Rebecca Bradley wrote a 22-page concurring opinion focusing on the separation of powers doctrine in the federal and state of constitutions. She wrote in part:
”However well-intentioned, the secretary-designee of the Department of Health Services exceeded her powers by ordering the people of Wisconsin to follow her commands or face imprisonment for noncompliance. In issuing her order, she arrogated unto herself the power to make the law and the power to execute it, excluding the people [as represented by the Legislature] from the lawmaking process altogether.”
In both the oral argument and her concurrence Justice Rebecca Bradley spent much time and emphasis describing the lockdown order as a tyranny approaching the tyranny of the Japanese-Americans internment camps during World War II. For those of us who were alive during World War II, the comparison is ridiculous.
Does all of this still matter?
Some may ask, isn’t this discussion passé?
Communities in Wisconsin are gradually opening up, but not to the carefree days before the pandemic. Our pandemic scientists are warning us that it is highly likely COVID-19 may come back with vengeance. If and when it does, the issue of who can issue what kinds of preventive orders will be highly relevant.
If the virus resurgence comes shortly ahead of the Nov. 3 election, the first two decisions could come into play, especially if there are further disputes about absentee ballots. Keep in mind, though, that at the end of July conservative Justice Daniel Kelly will be replaced on the Wisconsin Supreme Court by Justice-elect Jill Karofsky, a liberal.
That may not matter, however, because courts give great weight to precedent. The Wisconsin Supreme Court could well let its two decisions stand, rather than reconsidering either issue so soon after its April and May rulings.
That scenario just might force Evers and the Legislature to work together in the decision-making process – at least occasionally.
Thomas Barland is a retired Circuit Court judge and has been an Eau Claire resident since 1942. He served for six years as a (Rockefeller) Republican member of the state Assembly in the 1960s. Barland was a member and then chair of the state Government Accountability Board, which provided oversight on campaign finance, elections, ethics and lobbying activities until the Legislature dissolved it in 2015.