By Shereen Siewert

The Wisconsin Supreme Court has overturned Wisconsin’s safer at home extension, ruling that Gov. Tony Evers and his administration exceeded its authority when the state Dept. of Health Services Secretary Andrea Palm issued the order.

Under the court’s ruling, Evers could issue new orders to keep people home and businesses closed, but would require the approval of the Legislature’s rulemaking committee, which is run by Republicans.

The conservative-majority high court’s 4-3 decision was delivered by Chief Justice Patience Roggensack in coalition with three of the court’s other conservative, Justices Annette Ziegler, Rebecca Grassl Bradley and Daniel Kelly. The court’s liberal coalition, Justices Ann Walsh Bradley and Rebecca Dallet, were joined by conservative Justice Brian Hagedorn in their dissent.

Unclear is whether businesses will open right away. The lawsuit, filed earlier this month, asked for a six-day period to allow the Evers administration and the Legislature to work together on a plan to safely reopen businesses.

The ruling itself makes no mention of a stay.

Roggesack, in the majority opinion, said that Palm should have issued such state restrictions through a process known as “rule making,” which gives lawmakers veto power over agency policies. 

Without legislative review, “an unelected official could create law applicable to all people during the course of COVID-19 and subject people to imprisonment when they disobeyed her order,” the majority wrote. 

The Tavern League of Wisconsin posted a message on the group’s page saying that businesses can open immediately, according to their interpretation of the May 13 ruling. The Tavern League is urging members to follow safety guidelines established by the Wisconsin Economic Development Corporation, which has a series of downloadable documents targeted toward specific industries.

Each one is several pages long and has information for employees and customers and about cleaning and sanitizing.

If an administrative rules process happens, that could take 20 days or more to implement. Under this approach, Evers can sign off on new rules, but a Republican committee has the final say on whether the rules are implemented.

If either party doesn’t approve of the proposed rules, the process could start all over again.

The ruling handed a defeat to Democratic Gov. Tony Evers in his administration’s response to the COVID-19 pandemic. Now, the Legislature will need to work quickly to come up with a replacement plan.

Wisconsin Attorney General Josh Kaul sharply criticized the ruling and the failure of the Legislature to put forward a new, workable plan, in a statement released late Wednesday afternoon.

“Over a week ago, I called on the legislature to act immediately,” Kaul wrote. “Unfortunately, it failed to do so, and Republicans in the legislature still have offered no plan to address the coronavirus. They can’t keep waiting to do so. In the middle of the fight against this virus, we need reasonable rules in place that protect Wisconsinites’ health. In the meantime, I ask all Wisconsinites to continue helping to fight the coronavirus by socially distancing and following other recommendations from public health experts.”

Businesses preparing to open are urged to follow the WEDC guidelines, which can be found below.