Wisconsin Supreme Court to hear oral arguments in 'Safer at Home' lawsuit

MADISON -- The Wisconsin Supreme Court announced Friday that it will hear oral arguments early next week in a lawsuit seeking to block Democratic Gov. Tony Evers' stay-at-home order.

The justices ruled 6-1 to accept the case and scheduled oral arguments for Tuesday morning via video conference. The arguments are expected to last at least 90 minutes.

The ruling said the court will consider whether the order was really an administrative rule and whether Palm was within her rights to issue it unilaterally. Even if the order doesn’t qualify as a rule, the court said it will still weigh whether Palm exceeded her authority by “closing all ‘nonessential’ businesses, ordering all Wisconsin persons to stay home, and forbidding all “nonessential’ travel.'”

Conservatives hold a 5-2 majority on the court. Liberal Justice Rebecca Dallet cast the lone dissenting vote. The ruling didn’t include any explanation from her.

Evers initially issued the stay-at-home order in March. It was supposed to expire on April 24 but state Department of Health Services Secretary Andrea Palm extended it until May 26 at Evers' direction.

The order closed schools, shuttered nonessential businesses, limited the size of social gatherings and prohibits nonessential travel. The governor has said the order is designed to slow the virus' spread, but Republicans have grown impatient with the prohibitions, saying they're crushing the economy.

Republican legislators filed a lawsuit directly with the conservative-controlled Supreme Court last month challenging the extension. They have argued that the order is really an administrative rule, and Palm should have submitted it to the Legislature for approval before issuing it.

They've asked the court to issue a temporary injunction blocking the order but delaying imposing it for six days to give Palm time to devise a legal administrative rule. Such rules can take anywhere from several weeks to several years to promulgate and the Legislature has the ability to stop the process if it doesn't like how the rule is shaping up.

Evers has countered that the executive branch has broad authority to combat communicable diseases and Republicans haven't presented any alternative plans. But he faces an uphill fight with the conservative-leaning court.

The state Assembly's Republican-controlled state affairs committee held a long hearing Thursday on the state chamber of commerce's proposal to reopen businesses. Under that plan, all businesses would be allowed to re-open but would have to implement increasingly stringent procedures to protect workers and customers based on the risk they face in each situation.

Republican legislative leaders and Evers began trading emails about setting up a meeting next week to discuss reopening the state minutes before the court announced its ruling.

Wisconsin’s confirmed coronavirus cases increased by 460 on Friday, the second day in a row of record-high infections, the state Department of Health Services reported.

The spike also marked the second day in a row that positive cases increased as a percentage of overall tests processed. Of the 3,632 tests processed on Thursday, 12.7% were positive. That came after a 10.8% increase the day before. In the day prior to that, the percentage of positive cases had declined.

Evers’ plan for re-opening the state calls for a general 14-day decline in new cases as a percentage of overall tests given.

To date, 327 people have died from the virus in the state and more than 7,300 have tested positive.