Wisconsin GOP Justices Seen as Corrupt, Litigation Is Pending

Wisconsin Supreme Court entrance at state capitol

Update: In Jere Fabick v. Andrea Palm, Appeal Number 2020AP000828, A May 18 state DoJ legal filing reads in part: "As a result of this Court's decision in Legislature v Palm, the petitioners' motion for an injunction and petition for an original action challenge an order that no longer exists. If this Court doe not sua sponte deny the petitioners' motion for an injunction and decline to take jurisdiction of the petition for an original action because the claims are moot, then the State Respondents respectfully request that the Court issue a schedule for supplemental briefings on the issue of mootness," (Wheeler Report).
  
Madison, Wisconsin — Wisconsin Supreme Court republicans deciding questions through fidelity to law is as likely as Republican legislators using empirical investigation and scientific findings to inform public policy.

It's not the way it is here.

Impartial processes are often mission-critical barriers to Republican Party aims of achieving corporatist demands and fundamentalist taboo-morality dogma.

Democratic foundations such as law, rights and empirical reality are rejected by Republicans, in conception.

All proceedings, hearings, deliberation and elections should arrive at orderly, pro-Party results. Law and citizen input must be minimized because the rule of law and rights-laden democracy can be powerful opposing forces to Republican Party autocracy.

It is in through this perspective that we can understand the work of Wisconsin Republican justices reaching preordained, nakedly corrupt decisions to serve Republican Party interests.

Noone was surprised by the Wisconsin Supreme Court decision to block Gov Tony Evers administration's safer-at-home Emergency Order 28, (Wisconsin Executive Orders), (Treleven, Wisconsin State Journal).

That legal case is entitled Wisconsin Legislature v. Secretary-Designee Andrea Palm, Julie Willems Van Dijk and Nicole Safar, In Their Official Capacities As Executives of Wisconsin Department of Health Services Respondents. (Appeal Number 2020AP000765), (Case History).

Another case now before the Wisconsin Supreme Court is the so-called second safer/stay-at-home litigation, Jere Fabick v. Andrea Palm, Appeal Number 2020AP000828.
 
Fabick appears part of the Republican Party effort to dismantle targeted statutory law protecting public health and safety without the introduction of legislation. No need for a bill when hyper-activist justices stand ready to accomplish Party aims.

"Final briefs have been filed in a second lawsuit challenging Wisconsin's 'Safer at Home' order, this one arguing the order violated peoples' rights to freedom of worship, speech and travel under the Wisconsin Constitution," reports Wisconsin Public Radio.

Fabick is pending before the state Supreme Court. A decision whether the Court will hear the case is expected soon.

As local public health officials issue local orders to respond to the COVID-19 pandemic in the wake of Palm, the state DoJ issued an advisory opinion on May 15 affirming the authority of local officials because they are empowered by a different statute than the governor and Health secretary.

The non-binding DoJ opinion states in part:

4. First,  the supreme court’s  decision  addressed  only  DHS’s  authority found in Wis. Stat. § 252.02. That statute does not govern the authority of local health officers, which is separately set out in Wis. Stat. § 252.03. That separate grant of local authority  provides,  among  other  things,  powers  to  'prevent,  suppress  and  control  communicable  diseases'  and 'forbid  public  gatherings  when  deemed  necessary  to  control  outbreaks  or  epidemics.'  Wis.  Stat.  §  252.03(1)–(2).1  Because the  court  decision addressed a different statute applicable to a state agency, and not the statute applicable to local authorities, the Palm decision is not directly controlling on powers under the latter statute.

More litigation is expected by some observers.

Gov Tony Evers Sees End of Safer-at-Home Order; Would Follow Trump, Republicans' COIVD 19 Policy

Update II: Dr. Anthony Fauci, the nation’s top infectious disease expert, is warning Congress that if the country reopens too soon during the coronavirus pandemic, it will result in "needless suffering and death,"
(Madisoncom). Gov Evers' political gambit in issuing a new May 11 Emergency Order is his latest let's-hope tactic.
 
Update: See The GOP tests 2020 campaign theme: ‘Some of you will have to die.’ Tony Evers' message accepts this GOP premise, giving up major public health infrastructure built up over generations.

Madison, Wisconsin — Gov Tony Evers signaled a major course change in coronavirus COVID 19 policy in a statement last week, telling WBAY-TV his current Stay-at-Home order — now before the Wisconsin Supreme Court awaiting decision — should expire on May 26.

Evers (D) told WBAY's reporter, Cami Rapson, that he believes he can predict COVID 19's trajectory on May 26, divine relevant data points now, and infectious-disease experts' advice and conclusions, false statements that fly in the face of leading epidemiologists and the history of unpredictable and rapid progression of this coronavirus through the American population, (Roberts, New York Times).

Said Evers in a meandering interview with WBAY:

I think by [May] 26th we will be in a place where we don't have to do that, [extend Stay-at-home], unless something extraordinary happens. You know, the virus doesn't consult with me on that, but we are doing a great job with testing and tracing those results in a way that I feel confident we are headed in the right direction. ...

Whether we need to extend that, I frankly think we are going to meet our metrics that we laid out anyway. And so I'm doubtful. But if we have surges all across the state and things are going backwards, I suppose that's possible. But I think Safer at Home has worked, it's done its job, and we will continue to open up the state as we can thoughtfully and safely do it.

Evers is now rhetorically appeasing the Trump administration and Wisconsin Republicans, all of whom are working to end public health experts' pandemic policy at the expense and very lives of vulnerable members of our citizenry.

Tony Evers is privately derided by progressives and Democrats here for his dithering politics, exemplified by Evers' heavily criticized effort to hold Wisconsin's April 7 elections before reversing course on April 6 in the face of national ridicule. But Evers' comments last week garnered silence among Wisconsin Democrats.

Evers insists his public policy is informed by science.

As national media cite experts warning social-distancing efforts will not be sufficient to control the pandemic in the long term in the United States, Evers publicly musing ending social-distancing in some two weeks seems absurd.

Writes Siobhan Roberts in the New York Times:

By now we know — contrary to false predictions — that the novel corona virus will be with us for a rather long time.

'Exactly how long remains to be seen,' said Marc Lipsitch, an infectious disease epidemiologist at Harvard’s T.H. Chan School of Public Health. 'It’s going to be a matter of managing it over months to a couple of years. It’s not a matter of getting past the peak, as some people seem to believe.'

A single round of social distancing — closing schools and workplaces, limiting the sizes of gatherings, lockdowns of varying intensities and durations — will not be sufficient in the long term.

In the interest of managing our expectations and governing ourselves accordingly, it might be helpful, for our pandemic state of mind, to envision this predicament — existentially, at least — as a soliton wave: a wave that just keeps rolling and rolling, carrying on under its own power for a great distance.

Tony Evers seems an unappealing cross between Peter Pan and Neville Chamberlain as COVID 19's in-effect proponents wish to create a make-believe herd immunity among our citizen 'warriors,' a reality that is unachievable without a vaccine.

See the paper at the Center for Infectious Disease Research andPolicy (CIDRAP), University of Minnesota for three projected scaniros of COVID 19.

Wisconsin Republican Justices Put on Shit Show in Stay-at-Home Orals

Wisconsin Supreme Court entrance at state capitol

Update: "The court’s five Republican justices appeared to have no compunction about ending social distancing rules for the rest of the state’s citizens, even as they conducted their hearing remotely on Zoom," writes Mark Joseph Stern in Slate.

Madison, Wisconsin —The Wisconsin Supreme Court heard oral arguments this morning on the Republican-led legislature's petition to block Gov Tony Evers administration's safer-at-home Emergency Order, (Wisconsin Executive Orders), (Treleven, Wisconsin State Journal).

Most observers believe the Republican-led state court will rule in the Republican Party's favor, so partisan have Republican justices become.

The legal case is entitled Wisconsin Legislature v. Secretary-Designee Andrea Palm, Julie Willems Van Dijk and Nicole Safar, In Their Official Capacities As Executives of Wisconsin Department of Health Services Respondents. (Appeal Number 2020AP000765), (Case History).

The Legislature wants a Court order, (temporary restraining order), that would bar enforcement of the stay-at-home order issued April 16, 2020, (Wisconsin Executive Orders).

Oral arguments today featured rhetorical, contentions and seemingly outrageous comment by two Republican justices —Chief Justice Patience Drake Roggensack (R) and Justice Rebecca Grassl Bradley (R).

Justice Patience Roggensack second-guessed the administration's executive order and mused falsely that the coronavirus mostly impacted workers in meat-packing plants, and not what she termed "the regular folks."

Observes listening in online gasped at what appeared to be Roggensack's false observation implicitly disregarding the health and safety of Wisconsin citizens.

Justice Rebecca Bradley editorialized that the stay-at-home order is comparable to the infamous Japanese internment camps.

And Wisconsin's Republican chief justice just dismissed a coronavirus flare up because it only impacted people who work in meat packing plants and not "the regular folks."

— Ian Millhiser (@imillhiser) May 5, 2020

Justice Rebecca Bradley, a Republican, just compared Gov. Evers' stay-at-home order to the forced Japanese internment order upheld in Korematsu.

— Mark Joseph Stern (@mjs_DC) May 5, 2020

Attorneys Ryan J. Walsh for Petitioner, and Colin T. Roth for Respondents, argued the case.

On May 1, the Court voted to accept jurisdiction over the case and agreed to hear argument on the following issues, which were set forth in the Legislature’s petition:

The questions before the Court concern alleged overreach by the Evers administration accused of running afoul of Wisconsin statutes through its rule-making processes in its Executive Orders, (Wisconsin Court Headlines).

Republican justices also accused the Evers administration of violating the Wisconsin and United States Constitutions, Executive Orders, (Wisconsin Court Headlines).

The Wisconsin Supreme Court bars in-person oral arguments, using video conferencing instead, due to "health concerns created by the COVID-19 pandemic," (Wisconsin Supreme Court).

The May 5 oral arguments are reproduced below in YouTube by Wisconsin Eye.

Wisconsin Gov and DoJ Brief: Toss Republican Suit Seeking End to Stay-at-Home Order

Madison, Wisconsin — The Wisconsin Dept of Justice filed a brief asking the Wisconsin Supreme Court to deny the Republican-led legislature's petition to block the Tony Evers administration's safer-at-home Emergency Order, (Wisconsin Executive Orders).

The legal case is entitled Wisconsin Legislature v. Secretary-Designee Andrea Palm, Julie Willems Van Dijk and Nicole Safar, In Their Official Capacities As Executives of Wisconsin Department of Health Services Respondents. (Appeal Number 2020AP000765), (Case History).

The Legislature wants a Court order, (temporary restraining order), that would bar enforcement of the stay-at-home order issued April 16, 2020, (Wisconsin Executive Orders).

In the response brief, the Evers administration asks the Court to deny the legislature's petition for an original action before the high state court, and the motion for a temporary injunction.

Observes believe the legal position of the administration is strong, but the Republican-led Wisconsin Supreme Court often acts an adjunct for the Republican Party in political cases.

The brief emphasizes the prominence of Wisconsin Statute § 252.02, the COMMUNICABLE DISEASES or Pandemic statutes.

States the brief:

Even if  this  Court  were  to  accept  jurisdiction, the claims should be dismissed as a matter of law.

A. The  language,  context, and history of Wis. Stat. § 252.02 make clear that DHS was authorized to issue Safer-at-Home.

It is well-accepted that statutes like Wis. Stat. § 252.02 provide  broad grants   of  authority  to  respond  to  a very  rare  and  narrow  type  of crisis—the  very  one  we  now  face  with  a  rapid  spread  of  a  novel  communicable  disease. These   kinds   of   provisions   appear in statutory   codes throughout  the  country. To  respondents’  knowledge,  every  state   operates   under   laws   vesting   these   duties   in   a   department of  health  or  similar  executive  agency,  and  the  petitioners  have  not  suggested  otherwise.  These  laws  are designed to  provide  an  executive  agency  the  tools  to  act  quickly  and  with  flexibility  based  on  circumstances  on  the  ground. Wisconsin’s version of these laws, in section 252.02, does  just  that.  It  gives  DHS  flexible  powers to  address  the specific  threat of a  rapidly  spreading  disease. That  makes  sense:  this  Court  has  long  acknowledged  the  commonsense  proposition that public health officials must be able to react swiftly and effectively in the face of an imminent or existing crisis.

As  it  pertains  to the pandemic  here,  the  statutes  contain  three  independent  powers  that  authorize  measures found  in  Safer-at  -Home: Section  252.02(6)  permits  DHS  to  “authorize and implement all emergency measures to control communicable diseases.” Section 252.02(4) allows the agency to  “issue  orders  .  .  .  for  the control  and  suppression  of  communicable diseases” that “may be made applicable to the whole  .  .  .  of  the  state[  ].”  And  Section  252.02(3)  authorizes  DHS  to  “close  schools  and  forbid  public  gatherings  .  .  .  to  control outbreaks and epidemics.”Petitioners’ approach  to these statues  is not only atextual, it also   would lead to absurd, and dangerous, results. This is exactly the  time  when  pandemic  statutes  should apply with their full force. [pp 22-23]

The Evers administration April 28 press release is linked here.

The Wisconsin Supreme Court currently bars in-person oral arguments, using video conferencing instead, due to "health concerns created by the COVID-19 pandemic," (Wisconsin Supreme Court).

Wisconsin Republicans Seek Court Action to Block Safer at Home Order

Madison, Wisconsin — Republicans asked the Wisconsin Supreme Court to block the Tony Evers administration's safer-at-home Emergency Order 28.

The Safer at Home order seeks to protect the public from the deadly COVID 19 disease during the state public health emergency, (Wisconsin Executive Orders; Wisconsin Examiner; Wisconsin State Journal; Milwaukee Journal-Sentinel).

The legal case is entitled Wisconsin Legislature v. Secretary-Designee Andrea Palm, Julie Willems Van Dijk and Nicole Safar, In Their Official Capacities As Executives of Wisconsin Department of Health Services Respondents. (Appeal Number 2020AP000765), (Case History).

The Republican-led Legislature seeks a Court order, (temporary restraining order), that would bar enforcement of the stay-at-home order that was issued April 16, 2020, (Wisconsin Executive Orders).

The state Supreme Court is often used as an instrument to advance Republican Party aims.

The legal petition is unusual in its use of political rhetoric.

The petition characterizes the Evers administration work on the Public Safety emergency as a "decree," and includes use of adverbs such as Incredibly, brazenly to describe executive orders issued during the health emergency.

The legal action follows objection from rightwing billionaires such as Charles Koch and Liz Uihlein. Uihlein urges her company employees in a recent email to oppose Gov Evers' work on COVID 19, (Bloomberg).

The Wisconsin Supreme Court majority is biased for Republican Party interests.

Five right-wing justices routinely rule for their partisan patrons. With the defeat of Justice Daniel Kelly in April, the Republican majority on the Court will be four rightwing justices to three when Kelly's term expires on July 31.

The petition urges the case be resolved without oral argument.

The petition states:

Although this case would warrant oral argument under ordinary circumstances, the Legislature respectfully requests that the Court resolve this urgent dispute without it. Emergency Order 28 takes effect on April 24, 2020, and prompt adjudication is necessary to avoid ongoing irreparable harm. For the same reason, immediate publication is unnecessary to the extent that it would delay a resolution of the emergency motion.

The Wisconsin Supreme Court currently bars in-person oral arguments, using video conferencing instead, due to "health concerns created by the COVID-19 pandemic," (Wisconsin Supreme Court).

Wisconsin Anti-Due Process Bill Is Unhinged

Update: Bizarre Republican amendment would still cut out appellate deliberation, but would allow clerical paperwork by appellate courts, (WisPolitics). Equal Protection and Due Process problems remain.
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Madison, Wisconsin — Suppose you and friends in the legislature know someone from Taiwan and henceforth you would like $3 billion in public subsidies lavished onto your comrade.

Crazy, but legal.

But so enthralled are you with your Taiwanese friend, you propose special legal status of a class-caste power of privilege that would have made C. Wright Mills recoil in surprise.

And laws protecting the people and Wisconsin communities? Forget it, you say.

Equal playing-field in the marketplace. Cute.

The Wisconsin Republican-Peter Barca project in service to Foxconn Technology Co Ltd, aka Hon Hai Precision Industry Co Ltd., now proposes perverse and privileged legal status for this single corporate actor along the lines described above.

Putting aside the fiscal and macro-economic cat-five disasters being courted, not much objection is voiced publicly from Wisconsin on the proposed abandonment of settled Equal Protection and Due Process doctrine, and state Judicial power and discretion establishing guarantees under which all litigants are equal in the eyes of the Judicial branch.

Notes Matt Rothschild:

When the Joint Finance Committee voted, along party lines, to give Foxconn the right to directly appeal any lower court order straight to the Wisconsin Supreme Court and to have that order suspended until the high court rules on it, the legislature was entering very dubious legal waters.

First of all, there is a separation of powers problem. The legislature is letting Foxconn skip the entire appellate court process. Where does the legislature get off telling the judiciary how it will function?

Secondly, there is an equal protection problem. Why should other businesses, or individuals, have to go through the potentially costly appellate process when Foxconn doesn’t have to? And why can only Foxconn get an instant and automatic stay on any lower court’s decision when every other party in the lower courts has to ask a judge for a stay?

The reason why the Joint Finance Committee carved out the exception for Foxconn is pretty obvious: The Wisconsin Supreme Court is reliably in the hands of a conservative and business-friendly majority.

This judicial exemption that the GOP-dominated Joint Finance Committee has carved out for Foxconn puts in sharp relief the utter corporatization of Wisconsin politics.

We don’t have a democracy in Wisconsin today. We have corporate rule.

That this abandonment of equality before the law is openly mused is an embarrassment for Wisconsin, much less seriously proposed in the Wisconsin Legislature's 2017 Special Session, Assembly Bill 1.

I doubt this anti-Constitutional legislative initiative will be included in the final Foxconn bill.

Yet, so unhinged and uneducated about Constitutional protections are Republicans and a couple of Democratic Party bed-fellows that this latest proposal could ring unfair and unjust around the state and become a political scandal, if only the Wisconsin Dems will begin strategic communications to this effect.

In any event, federal litigation will predictably commence with Gov. Scott Walker signing this legislation into law, so what Walker and Republicans are doing is betting they can present this madness as productive public policy better than critics can point out its numerous defects.