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Timeline: Where the second stay-at-home order lawsuit stands

As Wisconsin awaits a decision in the Legislature’s lawsuit over Gov. Tony Evers’ stay-at-home order, another challenge to the extended order is proceeding.

The second lawsuit, filed by two Waukesha County residents on May 4, accuses the Department of Health Services’ extended safer-at-home order of infringing on the petitioners’ constitutional rights to freedom of worship, speech and assembly, along with the right to travel.

On April 16, DHS Secretary Andrea Palm extended the safer-at-home order through May 26 to slow the spread of COVID-19 in Wisconsin. The previous order had been scheduled to expire on April 24.

The second injunction asks the state Supreme Court to enjoin the enforcement of certain provisions of the April 16 order. The provisions limit religious gatherings to fewer than 10 people, prohibit all public and private gatherings of any number of people who aren’t part of the same household, order Wisconsinites to stay at home, ban travel and authorize the enforcement of the provisions.

The petition said the order puts a discriminatory nine-person cap on religious gatherings, bans any political gatherings and effectively imposes a modified form of house arrest on Wisconsin residents.

Here’s a timeline outlining more of the petitioners’ arguments and what has happened in the case since it was filed:

May 4
The law firms Cooper & Kirk of Washington, D.C. and Cramer, Multhauf, & Hammes of Waukesha filed an emergency motion seeking an injunction and an emergency petition on behalf of Jeré Fabick and Larry Chapman.

  • The lawsuit accuses the Department of Health Services’ extended safer-at-home order of infringing on the petitioners’ rights to freedom of worship, speech and assembly, along with the right to travel.
  • Fabick is the president of Fabick Cat, a Caterpiller equipment and engine dealer with locations in Wisconsin, Illinois, Michigan and Missouri. He’s a Waukesha County resident who, according to court documents, wanted to protest the order in Madison but couldn’t because of the emergency order.
  • Chapman is a Walworth County resident and member of Lakewood Baptist Church in Pewaukee. He said he’s unable to attend in-person worship services because of the order, and he doesn’t consider the church’s virtual services an adequate substitute.
  • The petitioners acknowledged the seriousness of the COVID-19 pandemic, but they wrote that the order draws “inexplicable” distinctions.
  • “But the actions Respondents have taken to combat those risks, no doubt in good faith, have gone too far, needlessly infringing our most basic constitutional liberties—to an extent that is without precedent and that would have been virtually unimaginable in a free society just two months ago.”
  • The petitioners are requesting that the state Supreme Court issue an order immediately enjoining enforcement of the provisions in question and grant the emergency petition.

May 5
The Wisconsin Supreme Court ordered the respondents to respond to the petition and  motion by 4 p.m. on May 8. The order gave the petitioners until 4 p.m. on May 11 to file their reply in support of the petition and motion.

May 8

The State filed a Respondents’ Response to Petition for Original Action and Motion for Temporary Injunction.

  • The state’s response argued the state Supreme Court should decline to exercise original jurisdiction because the fact-intensive claims are unsuitable for an original action and should be filed in a trial court first.
  • If the high court doesn’t deny the petition, the State said the claims will still fail as a matter of law.
  • The State argued the framework the Supreme Court set forth in Jacobson, its landmark public-health decision, supports Safer at Home’s temporary, limited restrictions.
  • The respondents also argued the order doesn’t infringe on the freedoms of religious worship, assembly and travel protected by the Wisconsin constitution.
  • “The temporary restriction on the petitioners—however compelling in the near term—cannot
    outweigh the interest the public has in avoiding the harms that would result if COVID-19 spreads out of control.”

The sheriffs of Dane, Walworth and Waukesha counties, who are named in the lawsuit, filed a Respondents’ Response to an Emergency Petition for Original Action and Emergency Motion for Injunction.

  • The sheriffs’ response argued the petitioners haven’t alleged the existence of a controversy between the petitioners and the sheriffs, and they haven’t said what relief they’re seeking from the sheriffs.
  • The response requests the state Supreme Court to deny and dismiss, on the merits and with prejudice, the emergency petition for original action.
  • “The Sheriff Respondents now find themselves being forced to defend themselves in litigation that alleges nothing against them and seeks nothing from them.”

Two affidavits in support of the State Respondents’ Response to Petition for an Original Action were filed as well.

  • The affidavit of Ryan P. Westergaard, the chief medical officer and state epidemiologist for communicable diseases at the Wisconsin Department of Health Services, discussed the likely effects of the social-distancing measures imposed in response to COVID-9 and recommended a phased method of reopening the state, known as the Badger Bounce Back plan.
  • The affidavit of Julie Willems Van Dijk, deputy secretary of the Wisconsin Department of Health Services, also supported the Badger Bounce Back plan.
  • “The Badger Bounce Back plan does not require that there be no possibility of ongoing transmission of the virus in the state before mitigation can be lifted. Instead, it proposes to prolong mitigation long enough to build up the State’s capacity for testing and tracing to respond to new cases that will inevitably occur as restrictions are lifted.”

A Wisconsin Supreme Court order also granted motions for leave to file non-party briefs, and the high court accepted the briefs for filing.

  • The Freedom from Religion Foundation filed a non-party brief in support of Respondents and in opposition to Petitioners’ Emergency Motion for an Injunction.
  • “The order treats essential voluntary religious gatherings the same as essential voluntary secular gatherings because the religiosity of an event has no bearing on the ability of COVID-19 to be transmitted.”
  • Wisconsin Faith Voices for Justice filed a non-party brief and accompanying appendix with 29 letters from state religious leaders.
  • “WFVJ strongly opposes the granting of Petitioners Jeré Fabick and Larry Chapman’s Emergency Petition for Original Action and Petitioners’ Emergency Motion for Injunction.”

May 11
A Reply Memorandum in Support of Petitioners’ Emergency Petition for Original Action and Emergency Motion for Injunction was filed.

  • The 94-page document argued the emergency order’s nine-person limit can’t satisfy the compelling interest/least restrictive means test, and the nine-person cap is not the least restrictive means, or even a rational means of protecting public safety.
  • The petitioners called the order unconstitutionally overbroad and deemed its ban on indoor assemblies an “impermissible time, place, or manner restriction.”
  • “(I)t remains entirely mysterious to us why the State would conclude that hundreds of people trafficking in and out of Menards poses less risk of viral spread than 30 socially distanced believers worshiping together in a properly sanitized sanctuary.”

About Michaela Paukner, mpaukner@wislawjournal.com

Michaela Paukner is the legal reporter for the Wisconsin Law Journal. She can be reached at (414) 225-1825 or by email at mpaukner@wislawjournal.com.

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