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Wisconsin Spotlight | May 8, 2020

MADISON — While the Wisconsin Supreme Court deliberates on the Republican-led challenge to the Evers administration’s unilateral stay-at-home orders, it’s considering another lawsuit that goes to the heart of individual liberty. 

Fabick v. Palm, filed Monday, accuses the state of Wisconsin of violating the fundamental rights of conscience, assembly and travel of state citizens. 

“The State has clearly 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,” Jeré Fabick, one of the petitioners, said in a statement. 

Fabick is president of Fabick Cat, the Caterpillar equipment and engine dealer for a large swath of Missouri, Illinois, the entire state of Wisconsin, and the upper peninsula of Michigan. He lives in Waukesha.  

Larry Chapman, of Walworth County, is co-petitioner. Chapman is a member of Lakewood Baptist Church, in Pewaukee, which, like places of worship across the state, has been forced to end regular in-person services because of the administration’s social-distancing order limiting gatherings to nine or fewer people. 

In March, as the global coronavirus pandemic hit Wisconsin, the governor issued his “Safe at Home” order. He shut down schools, churches, and nonessential businesses. The order also banned what the Department of Health Services deemed nonessential travel and advised Wisconsinites to stay at home, ostensibly to limit the spread of the virus and not overwhelm the state’s medical resources. 

That order was originally set to expire on April 24. Before it did, DHS Secretary-designee Andrea Palm extended the order until May 26 — the day after Memorial Day Weekend. In doing so, Palm effectively said DHS had the power to extend the order indefinitely, depending on various thresholds involving COVID-19 infections and deaths.  

As Empower Wisconsin first reported, state and county health officials went as far as banning drive-up Palm Sunday and Easter Week services around the state. The administration ultimately relented after public outcry. But the DHS has yet to lift gathering restrictions for places of worship, so in-church services remain off limits. 

Charles J. Cooper, founding partner of Cooper & Kirk, the Washington D.C.-based law firm representing the plaintiffs, said the Evers administration has curtailed basic rights, rights that cannot be abridged even in time of public health crisis. 

“The fundamental constitutional freedoms to gather together for worship and for political speech and association are not fair weather rights, but rather were designed, as United States Supreme Court has put it, to endure through ‘the various crises of human affairs,’” said Cooper, who served as former assistant attorney general in the Reagan Justice Department. 

“The restraints that Wisconsin’s executive officials have placed on the State’s citizens to combat the Covid-19 crisis, while no doubt well-intentioned, have needlessly and discriminatorily infringed on these fundamental rights of the people.”

Chapman, according to the lawsuit, believes “virtual” church services are not an adequate substitute for in-person worship next to other believers. 

“Mr. Chapman believes that Scripture calls for regular in-person worship, not regular worship at home in front of the computer,” the lawsuit states. “Moreover, Lakewood’s worship services regularly include the celebration of Holy Communion, and that simply cannot take place in a ‘virtual’ setting.”

The Wisconsin Supreme Court heard oral augments this week in the Legislature v. Palm. That challenge is, on the surface, about whether the DHS secretary overstepped her statutory authority in extending Evers’ broad stay-at-home orders, but the constitution is at its core. 

Conservative justices sounded skeptical about Palm’s use of power. 

“… (W)here in the constitution did the people of Wisconsin confer authority on a single, unelected cabinet secretary to compel almost 6 million people to stay at home and close their businesses and face imprisonment if they don’t comply — with no input from the Legislature, without the consent of the people?” Justice Rebecca Grassl Bradley asked Assistant Attorney General Colin Roth.

Evers has called the lawsuit “shameful,” asserting that Republicans are “exploiting a global pandemic to further their attempts to undermine the will of the people.”

But the will of untold numbers of business owners and many of the hundreds of thousands of people forced on to the unemployment line is that the executive branch re-open Wisconsin. Thousands of protesters have taken to the streets to express their concern and frustration about the loss of economic and individual liberties. 

The state Supreme Court has ordered state response briefs in the civil liberties lawsuit by today. Attorneys for Fabick and Chapman are to respond by Monday. They are hopeful the court will decide next week to take the case. 

“As a former Attorney General, I understand that Government needs space to protect its citizens during times like these,” said Adam P. Laxalt, former attorney general of Nevada and an attorney in the constitutional challenge.  “While much of Wisconsin’s approach to fighting the pandemic is lawful, the state has clearly overstepped important Constitutional boundaries and has failed to protect its citizens‘ fundamental liberties of freedom of conscience, right to assembly and free exercise, and the right to travel.”

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