Wisconsin Supreme Court: No Need to Stay at Home Any More!

by: Anthony F. Della Pelle
14 May 2020

Late yesterday, the Wisconsin Supreme Court issued a 161-page opinion striking down Democratic Governor Tony Evers’ “stay at home” Executive Orders, marking the first-known high court victory for challengers to the shutdown orders issued by Governors and other executives around the country.  The 4-3 decision was lauded by local Republicans and small business owners as a win for fundamental consitutional property and liberty rights, and simultaneously criticized by Evers, State Health Secretary Andrea Palm, and others who expressed concern that the decision was a setback for public health and the local economy.

One of the distinctions about this lawsuit as compared to other unsuccessful lawsuits issued around the country challenging other shutdown orders is that it was filed by the State Legislature, in State court, against State executives, thus highlighting the potential separation of powers issues which are at the foundation of these challenges.  In other states, shutdown challenges have predominantly been filed by private parties against public officials, not public officials against public officials.  These Wisconsin plaintiffs, a statewide Republican-led legislature, alleged that Democratic-led executive orders exceeded the powers provided to those executives by, you guessed it, the legislature.  And while the administration had recently eased some parts of the shutdown orders, which were first issued on March 25 and updated thereafter, the lawuit alleged that the continued restrictions were still overbroad and not only exceeded the power given to the executive branch, but also violated the constitutional equal protection rights of Wisconsin’s citizens.  And the Wisconsin Supreme Court yesterday agreed.

Immediate responsive actions were taken by some local and county Wisconsin government agencies, which issued their own “regional” stay at home orders.  Whether others will follow, or whether new statewide orders will be issued for a second bite at the apple remains to be seen.

Local and national press has already covered this story:

Wisconsin Supreme Court Strikes Down Stay at Home Order

Wisconsin Now Without COVID-19 Restrictions

Trump Expresses Support For Wisconsin Supreme Court Decision

Will yesterday’s decision stand alone, or will it start a domino effect, with others to follow?  As time passes, the breadth (or overbreadth) of these orders around the country may start to be more closely examined by courts around the country.  Stay tuned.