The Wisconsin Supreme Court Misinterprets Emergency Powers

A young woman during the coronavirus outbreak of 2020

Under Wisconsin Law, the governor possesses extremely broad power to issue any order that he or she deems necessary to protect lives and property during a state of emergency.  When responding to an outbreak of a communicable disease, the governor has the specific power to prohibit public gatherings in any place within the state and for any period of time while the emergency is ongoing.  The source of this authority is the power granted to the governor under the Emergency Management Act, which places a duty on the governor to issue orders coordinating the state’s response to a disaster, and the power granted to the Secretary of the Department of Health Services to issue orders forbidding public gatherings during an epidemic.  As the top executive branch official in the State of Wisconsin, Governor Evers has both the statutory authority to direct the state’s emergency response efforts and the constitutional authority to make full use of the power of the state’s administrative departments.  

On April 6, the Wisconsin Supreme Court — its members meeting under emergency procedures intended to protect their own health — issued an order that had the practical effect of requiring Wisconsin voters who had not already received an absentee ballot to visit a polling place on April 7 and vote in person if they wished to cast a ballot in the spring election.

The result of the Court’s ruling in Wisconsin Legislature v. Evers was to place Wisconsin voters in an untenable position. The ruling disenfranchised anyone who wished to shelter at home in order to avoid possible exposure to Covid-19, a deadly communicable disease, if that person lacked either a computer, internet access, a scanner for making a digital copy of their ID, or a witness to verify their absentee ballot.  All of these prerequisites were necessary before a Wisconsin voter could obtain and cast an absentee ballot whilst still sheltering in place. The majority opinion was clear: for anyone who fell into this category, the price of casting a ballot was risking exposure to Covid-19.

The majority opinion in Wisconsin Legislature v. Evers has nothing to do with defending the Rule of Law, and it is a mistake to characterize it in that fashion.  There is nothing in any law passed by the Wisconsin legislature that requires the result announced by the Court. Indeed, had the Wisconsin Supreme Court truly intended to uphold the longstanding statutory scheme relating to government powers in response to an outbreak of communicable disease, the Court would have arrived at a contrary result.

A.      Background

The State of Wisconsin, like the rest of the country, has been engaged in a struggle to contain the spread of a coronavirus known as Covid-19. On March 12, 2020, Governor Tony Evers issued Executive Order 72, declaring a public health emergency in Wisconsin.  This order was part of a series of executive actions taken by Governor Evers and other executive branch officials in order to address public health and safety concerns during the spread of this deadly communicable disease. On March 24, 2020, the Secretary-designee of the Wisconsin Department of Health Services, Andrea Palm, acting at the direction of Governor Evers, issued Emergency Order 12 (the “Safer-at-Home Order”).  That order directed all individuals in Wisconsin to shelter at home, unless engaged in essential activities, until April 24, 2020, or until such time as a superseding directive took effect.

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A Retrospective on the “Year of Clean Drinking Water”

A Retrospective on the “Year of Clean Drinking Water”

2019 was a memorable year for those interested in Wisconsin’s water resources. During his January 2019 “State of the State” address, Governor Tony Evers declared it the “Year of Clean Drinking Water in Wisconsin,” making water a primary focus of his first year in office. Around the same time, Assembly Speaker Robin Vos announced the creation of a water quality task force to study water contamination issues. Shortly thereafter, I An exterior photo of the Wisconsin State Capitol.wrote a post describing a shorthand “top ten” list of issues for the administration and the task force to consider. In no particular order, my list included lead laterals, PFAS and other emerging contaminants, nutrient pollution, groundwater contamination and private wells, Great Lakes diversions, CAFO regulation, the DNR, infrastructure, high capacity wells and groundwater drawdown, and wetlands protection.

But now 2020 has arrived. What were the tangible results of the “Year of Clean Drinking Water”? Many promising efforts are underway and the state has made significant progress in some areas, but much remains to be done. The Governor’s declaration and the Speaker’s task force brought much needed public attention to water quality issues, but it would be a shame if that intense focus fades with the turning of the calendar. Governor Evers recognizes this, admitting in a recent interview that he knows the work will take much more than a year. And he expects Wisconsinites to support it in the longer term: “People like to have clean drinking water,” he said. “Who doesn’t want it? Who doesn’t need it?” Yet in his 2020 “State of the State” address Evers mentioned water only once, a late reference to “getting PFAS out of our water” as part of a list of things yet to be accomplished.

Here are the specifics of what happened last year:

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Tommy Thompson Told His Daughter to Try Being a Public Defender –and It Launched Her Career

Kelli Thompson admits she wasn’t entirely eager to become a lawyer, particularly the kind involved in courtroom work. As a student at Marquette Law School, “I probably did a very, very good job of staying far, far away from any kind of trial advocacy or litigation type of class. I think my thought was I would get the J.D. behind my name and just do something else. The something else, I have no idea what that was going to be.”

But, she said during an “On the Issues with Mike Gousha” program at Eckstein Hall on October 15, 2019, “In my third year of law school, I think it was killing my father that I was not even considering going into a courtroom.”

Her father, by the way, is Tommy G. Thompson, who, at that time in the mid-1990s, was governor of Wisconsin.

Kelli Thompson recalled, “At that point in time, he certainly wasn’t pushy, but he said, ‘Before you decide you hate it (courtroom work), you at least have to try it.’ . . . He said Marquette has wonderful clinical programs.” He told his daughter to pick one. “I said, ‘OK, you pick for me because I don’t know what I want to do’ . . . He said, ‘There’s no doubt, public defender, you should go there.’

So she did. “I can say quite honestly, after my first couple of days, I was hooked,” Kelli Thompson said.

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