Waukesha County residents mount 2nd stay-at-home lawsuit

MADISON — While all eyes are on Republican legislators' attempt to derail Gov. Tony Evers' stay-at-home order in the state Supreme Court, two Waukesha County residents have quietly mounted their own challenge alleging the mandate violates their constitutional rights to worship, protest and travel.

Jere' Fabick and Larry Chapman filed a lawsuit with the Supreme Court on Monday. Fabick is a member of the board of directors of The Heartland Institute, an Illinois-based conservative think tank. Chapman is a member of the Lakewood Baptist Church in Pewaukee. Their arguments differ dramatically from the GOP lawmakers’ challenge.

The Republican legislators have attacked the process Evers used to issue the order, arguing that his administration lacks the statutory authority to unilaterally issue such a broad order. They say it amounts to an administrative rule that requires legislative approval. They have asked the court to issue an injunction blocking the order.

Fabick and Chapman are challenging the order on its merits, arguing that key sections are blatantly unconstitutional.

Chapman alleges that language limiting religious gatherings to nine or fewer people violates his right to freedom of religion. The limit has prevented Lakewood from holding in-person Sunday services and distributing communion, he says. Virtual services don’t fulfill the Bible’s call for in-person worship and many elderly members can’t use such services, he adds.

Fabick, meanwhile, alleges that the order limits his free speech and travel rights. According to the lawsuit, he wants to engage in protests against the order but the travel ban prevented him from joining one in Madison on April 24.

“Even a public health crisis does not give the State executive authorities license to impose measures that are arbitrary and irrational, or that patently violate our most sacred constitutional rights,” the lawsuit said.

The filing doesn’t seek to invalidate the entire order. Instead, it asks the justices to block key sections limiting the size of religious gatherings, ordering everyone in the state to stay home, prohibitions on travel. It asks the court to leave other social distancing measures in the order alone.

The case has been largely overshadowed by the legislators' lawsuit. Fabick and Chapman filed it late Monday afternoon, just hours before the justices were scheduled to hear oral arguments in the GOP lawsuit. A ruling could come at any moment.

Attorney General Josh Kaul and Assistant Attorney General Hannah Jurss filed a response Friday afternoon on behalf of the state Department of Health Services. They argued that the stay-at-home order is helping prevent the coronavirus from spreading and the U.S. Supreme Court has long recognized that courts must consider the public's right to protection when assessing individual liberty claims during a pandemic.

Evers' order allows anyone to engage in political speech outside as long as they abide by social distancing rules, they wrote. The order actually grants religious gatherings more flexibility by allowing up to nine people to gather indoors while other venues such as theaters and athletic facilities must close, they added.

The order also allows travel for a number of activities, including working at essential businesses, caring for others and recreating in public parks or open spaces, they wrote.

"The petitioners ... fail to confront that this Court must balance their individual liberties against public protection; and ... they challenge Safer at Home for many things it does not do," Kaul and Jurss wrote.

The court hasn't decided whether to take Fabick and Chapman's case but it could have a decent chance of gaining traction. Conservative justices who control the court 5-2 questioned the legality of the order during oral arguments in the legislators' case.