Court Debates ‘Safer at Home’

Former WI Department of Health Services Secretary-designee Andrea Palm and Gov. Tony Earl address the press on March 12, 2020



By Jessica VanEgeren

May 5, 2020

Oral arguments given Tuesday. Ruling could come anytime.

The coronavirus is like a “wildfire that is spreading across the state” and the state health department is the fire department tasked with putting it out. 

That is the analogy Assistant Attorney General Colin Roth made Tuesday in oral arguments before the Wisconsin Supreme Court in defense of Gov. Tony Evers’ administration’s safer-at-home order.

“And that fire is still burning. It is still smoldering across the state,” Roth said. “When we start lifting these restrictions it is going to pop back up, and I see no world where rulemaking is going to be an adequate tool to combat such a quickly moving threat.”

The case, the Legislature versus Andrea Palm, secretary of the state Department of Health Services, is an attempt to block Palm’s decision to extend Gov. Tony Evers’ initial safer-at-home order from April 24 until May 26. 

Republican lawmakers did not agree that Palm, as the head of an executive agency, had the power to act unilaterally in extending Evers’ order.

They filed suit April 21. Republican lawmakers argue Palm should have attempted to accomplish her goal by working through the Legislature and creating an emergency rule to address the rapidly changing public health emergency caused by the COVID-19 pandemic. 

Roth asked the court to look at the briefs filed by the lawmakers in which they agree that a state statute does allow for the state Department of Health Services to ban “gatherings of a substantial number of people in relatively close contact for a prolonged period of time in a defined, perhaps even enclosed space.”

“I think large public gathering bans are covered, clearly. The legislature conceded this. Schools, churchese, athletic events, concerts, rallies, parades. That’s either from the statute or the legislature’s brief,” Roth argued. “I think that is undisputed. We (the state) have to have that power. That’s what the legislature says, and we agree.”

Roth said the point of disagreement, or where the two sides “begin to part ways,” is over the closure of non-essential businesses. The administration believes a subsection of the law extends to bars, restaurants and retail stores because of the high volume of folks who can gather in one location, Roth said. Lawmakers see it differently. 

Roth said roughly 75 percent of the stay-at-home order is agreed upon by both sides. What is covered through different subsections of the law is the ability to confine people to their homes, limit travel, ban small private gatherings and actually close businesses. 

Roth asked the court if it was to rule against the safer-at-home order to at least consider upholding the subsection of law that covers 75 percent that both sides agree upon.

“You can’t issue an order that is too broad,” Roth said.

The court focused its questioning of Ryan Walsh, the attorney for lawmakers, on the length of time it would take for an emergency rule to be written and enacted, offering a glimpse as to how the court may rule in the case.

If the court sides with lawmakers, the safer-at-home would expire six days from the date of the ruling. Walsh told the court Palm and other DHS officials should be able to get the Legislature an emergency rule to approve within 10 days. Palm has previously told reporters the process takes at least 20 days, and that is with all parties agreeing on the content of the new law. 

In this case, the new rule would dictate how the state continues to respond to the COVID-19 pandemic. 

The Evers’ administration maintains agencies, particularly DHS, have to be able to have the flexibility to respond quickly to fast-changing medical emergencies. Going to the Legislature to obtain approval prior to acting is too time-consuming, they argue.

“For over a century, courts have recognized that in the context of infectious diseases it is practically impossible for the Legislature to be able to predict exactly what is necessary,” Roth said. “You have to keep in mind. It is literally called the novel coronavirus. We have never seen it before and we don’t know exactly what it can do.”

Chief Justice Patience Roggensack asked by extension of that argument, if the government could step in every single flu season “because the flu kills tens of thousands of people in American every year” and that it is a “communicable disease.” 

“I think if the DHS secretary tried to do that every flu season they would have no support in the medical community for imposing those kinds of restrictions,” Roth said. 

Dozens of doctors and medical organizations filed a brief in support of the Ever’s administration’s use of the safer-at-home order last week. They said reopening the state too soon or by region could cause surges and overwhelm healthcare systems. 

Roth pointed to the recent surge in Brown County as an example of how quickly the virus can spread in a community. In Brown County, the number of positive cases increased tenfold over the past two weeks because of the spread of the virus at several meat processing plants

“Due to the meat plants .. that’s where Brown County got the flare,” said Roggensack. “It wasn’t just the regular folks in Brown County.”

Roth said if the safer-at-home order is lifted, flare-ups could happen all over the state.

“A gust of wind is going to fan the flames and it is going to explode again,” Roth said. “That is exactly what is going to happen. You are seeing it all over the world as these restrictions are lifted.”

The justices planned to meet at 1:30 p.m. Tuesday to discuss the case. A ruling could come anytime. 




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