In a 4-3 decision, the Wisconsin Supreme Court on Wednesday struck down the state's stay at home order, handing a defeat to Democratic Gov. Tony Evers in his administration's response to the COVID-19 pandemic.
With the governor's stay-at-home order suspended, Gov. Tony Evers and legislative Republicans will need to work quickly to come up with a replacement plan, otherwise it may be up to individual counties to implement a patchwork of their own COVID-19 regulations.
In its order, the Supreme Court said Evers' stay at home order is "invalid, and therefore, unenforceable," so businesses and restaurants presumably may open immediately. The Republican Legislature, which brought the lawsuit against Evers' health secretary, Andrea Palm, wanted the court to delay its decision from going into effect for 6 days to allow Evers and Republicans to come up with a replacement plan. The court denied that request, with justices saying lawmakers should have had time to produce replacement rules.
A statement on the Tavern League of Wisconsin website posted shortly after the court ruling said bars are allowed to open immediately. The post also encouraged any businesses planning to open to follow safe practice recommendations created by the Wisconsin Economic Development Corp.
Senate Minority Leader Janet Bewley, D-Mason, in a statement urged Wisconsinites to not be “coaxed into a false sense of security by the Supreme Court’s misguided action.”
“In times of confusion and fear, the people of Wisconsin need clear and consistent leadership. The court's decision today only adds to that uncertainty,” Bewley said in a statement. “At a time when leadership is needed most, Wisconsin families are left with political games.”
Pressure in the state, particularly from Republicans and the business community, has been building for Evers to implement a plan to begin re-opening the state. Businesses say that if the order is kept in place for much longer, a large number of businesses would permanently close.
Implementing new rules would likely go through the state’s administrative rules process, which the Evers’ administration has warned is a “complicated, time-consuming” process that could take 20 days or more to implement, although other options may be possible.
Approval of new COVID-19 rules through the administrative rules process would involve both Evers and Republican lawmakers. Evers would get to sign off on the rules, but then a Republican committee would have the final say on whether they get implemented. If either party doesn't approve, the process could start all over again.
GOP leaders were light on details on how they would like to reopen the state economy, should the court rule in their favor, during a Wisconsin Manufacturers and Commerce webinar on Wednesday.
Assembly Speaker Robin Vos, R-Rochester, said it's extremely unlikely that the economy will immediately reopen, but rather, he anticipates that GOP leaders and Democratic Evers will have to come back to the table to coordinate a plan.
However, bipartisan agreements regarding the state's COVID-19 response have been few and far between since the pandemic began.
“I think that’s the challenge that we have, is we’re now going to have to start negotiating cold, which is going to be a more challenging process," Vos said.
On Wednesday, Vos said his preference would be a statewide reopening, but said he also would consider a more regional reopening, based on metrics such as positive case numbers and hospital capacities. Last week, Vos said a regional reopening was the most appropriate response, rather than Evers’ statewide approach.
During a Friday media call, Evers didn't offer much insight into how quickly it would take negotiate with Republican lawmakers, who have been pushing for a regional approach to reopening the state, rather than continue with Evers’ statewide order.
"There are such a multiple of issues out there that (the Supreme Court is) deciding, including another case, so that it’s impossible at this point in time to say," Evers said.
Evers chief legal counsel Ryan Nilsestuen said negotiations would be difficult because Republican lawmakers, despite criticizing Evers' order, haven't produced a replacement plan off of which to base discussions if the order was struck down.
While Wednesday's ruling closes one loop on Wisconsin's COVID-19 response, Senate Majority Leader Scott Fitzgerald, R-Juneau, said it's very possible the state experiences a resurgence of positive cases later this year.
“I do anticipate there will be issues that emerge in the fall and they will have to be dealt with, and dealt with fairly quickly," Fitzgerald said.