Confusion Abounds In State Supreme Court's Reckless Decision To End Evers's Stay-At-Home Order

Chief Justice Roggensack's opinion doesn't explicitly state if there's a stay or not, leaving in limbo the question: is Wisconsin open right now??

The Wisconsin Supreme Court just issued its ruling on the constitutionality of Gov. Tony Evers's stay-at-home order that was issued to address the spread of coronavirus.

If the weeklong delay in releasing its opinion was to make sure there would be no confusion in their order, the justices failed miserably.

Image via Royalbroil/Wikimedia

The narrow 4-3 ruling (PDF link) found that provisions of the stay-at-home order were carried out in an unconstitutional fashion. Rules set in place weren't followed by the Department of Health Services, which Evers declared to be the agency in charge of handling the emergency.

In short, the declaration of a health emergency was sound, but the way the agency handled enforcing rules of the stay-at-home order were determined by four conservative justices to be grounds enough to throw everything out.

But here's the messed up part: whether there is a "stay" in place preventing an immediate end to the stay-at-home order, or not, is completely unclear. That's because one of the four justices left ambiguous her decision on issuing a stay.

Chief Justice Patience Roggensack is wishy-washy in her concurring opinion about the matter, writing that she recognizes even the plaintiffs involved in the case called for a six-day stay. But she also notes that they wanted that stay back in April, so maybe the call for a stay has expired?

Here's her opinion, with parts in bold portions that make it uncertain:

Although a very unusual request, on April 21, 2020, the Legislature asked this court to issue a temporary injunction of Emergency Order 28 but then requested a stay of that injunction for at least six days. We perceive this request as being grounded in a concern for an orderly transition from Order 28 to a lawful rule.

However, more than two weeks have passed since we began our consideration of this case. Therefore, we trust that the Legislature and Palm have placed the interests of the people of Wisconsin first and have been working together in good faith to establish a lawful rule that addresses COVID-19 and its devastating effects on Wisconsin. People, businesses and other institutions need to know how to proceed and what is expected of them. Therefore, we place the responsibility for this future law-making with the Legislature and DHS where it belongs.

...

I too am appreciative of the concerns raised by COVID-19 and the possibility of throwing the state into chaos. Accordingly, although our declaration of rights is effective immediately, I would stay future actions to enforce our decision until May 20, 2020. However, I trust that the parties will place the interests of the people of Wisconsin first and work together in good faith to quickly establish a rule that best addresses COVID-19 and its devastating effects on Wisconsin.

From a legal perspective, saying "I would stay" is not the same as voting to issue a stay of the opinion. Stating, "we place the responsibility for this future law-making with the Legislature and DHS where it belongs," is also confusing. Does that mean the court doesn't have, in Roggensack's opinion, the right to determine if a stay is necessary or not?

What the heck is going on?

Even fellow Justice Rebecca Bradley was puzzled by Roggensack's wording. Again, I've bolded the important parts:

Chief Justice Roggensack needs to clarify in an opinion whether she is or is not voting for a stay of the majority's decision...In a court of seven, it takes four votes to form a controlling majority on an issue. Chief Justice Roggensack provides the fourth vote to form a majority denying a stay. Without her vote there would be only three votes and the declaration of rights would not have immediate effect. However, assuming Chief Justice Roggensack is actually voting for a stay, as her concurrence seemingly indicates, there appear to be four votes for issuing a stay.

It's unclear, even to her fellow justices, what Roggensack's opinion is about.

The Tavern League of Wisconsin, however, seems to think that all bets are off, and is advising bars that want to open this second tonight to do so.

Some bars will be open tonight following Supreme Court ruling: Tavern League of Wisconsin just told its members they may open immediately.

"The result of this decision is business can open immediately. Please follow the WEDC guidelines you can find on the TLW website."

— Molly Beck (@MollyBeck) May 13, 2020

Well, that seems responsible. After all, state Supreme Courts decide if extremely contagious diseases exist or not, right?

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