Wisconsin unions seek to join lawsuit challenging 'Safer at Home' order

MADISON — A group of labor unions asked the state Supreme Court on Tuesday, April 28 for permission to help defend Democratic Gov. Tony Evers' stay-at-home order from Republicans who are trying to overturn it. That request was denied.

The clerk of the Supreme Court issued this statement Tuesday:

"A motion to intervene, both as of right and with the permission of the court; an alternative motion for leave to file a non-party brief, amicus curiae; a proposed brief in response to the petition for leave to commence an original action and the accompanying motion for temporary injunctive relief; and an affidavit of counsel in support of the proposed brief having been filed by the Milwaukee Teachers' Education Association, et al.;

IT IS ORDERED that the motion to intervene is denied; and IT IS FURTHER ORDERED that the motion for leave to file a non-party brief, amicus curiae, is denied.

The court’s April 21, 2020 order expressly stated that a non-party brief, which must be attached to a motion for leave to file it, “shall not exceed 20 pages if a monospaced font is used or 4,400 words if a proportional serif font is used.” The proposed non-party brief submitted with this motion fails to comply with this order as it is 74 pages in length."

The order, which was issued by state Department of Health Secretary Andrea Palm at Evers' direction, required people to stay home except for to buy groceries or for other important reasons and required most nonessential businesses to close.

The order is designed to slow the spread of the coronavirus, but Republicans and business leaders contend that the order has crippled the economy. GOP legislators filed a lawsuit directly with the conservative Supreme Court on April 21 seeking to block the order. They argue that it amounts to an administrative rule and Palm needed the Legislature's approval before she could issue it.

The order is set to expire on May 26. Evers has ripped the lawsuit as a blatant attempt to weaken his administration's powers, calling it a “political coup.”

The Milwaukee Teachers' Education Association, Madison Teachers Inc., Service Employees International Union Healthcare Wisconsin and Amalgamated Transit Union Local 998 filed a motion with the court Tuesday morning seeking to intervene in the case.

They argued that the Legislature lacks the standing to sue because it hasn't shown it would suffer any injury if the order continued. The unions acknowledged the legislators' argument that allowing the order to stand would hamper lawmakers' ability to oversee administrative rules, but the order is not a rule.

The unions went on to argue that state law allows the DHS to unilaterally issue rules or orders to protect the state from communicable diseases. The Legislature would take weeks to promulgate such a rule, putting people at risk of infection, they contend.

Evers filed a formal response to the lawsuit later Tuesday. He faces an uphill fight, though. Conservative justices hold a 5-2 majority and earlier this month they struck down his order postponing the state's April 7 presidential primary and spring elections in the face of the pandemic.

Still, the unions' attorney, Lester Pines, said he was holding out hope that the court might side with the governor. A number of the conservative justices adhere to a textualist philosophy — meaning they look for the plain meaning of statutes — and state law clearly allows the DHS to issue protective orders and rules.