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Empower Wisconsin | May 22, 2020

MADISON — Restaurant owners, salon operators, protesters, politicians, and a musician are among 17 Wisconsin plaintiffs suing state and local governments in federal court for locking down their civil liberties. 

The lawsuit, filed Wednesday in the U.S. District Court-Eastern District of Wisconsin in Green Bay, lists 16 defendants — from Gov. Tony Evers and his Department of Health Services Secretary-designee Andrea Palm to local health and law enforcement officers. 

It alleges state and local orders shutting down businesses and much of life at large in response to the COVID-19 pandemic have violated the constitutional liberties of the plaintiffs, as they have defied a Wisconsin Supreme Court ruling earlier this month declaring such orders nonenforceable. 

The suit seeks a temporary restraining order against local and state officials from “enforcing, attempting to enforce, threatening to enforce” orders that treat the plaintiffs differently than businesses and people deemed as “essential” to society. Ultimately, the litigation asks permanent injunctive relief, and damages. 

“Defendants have violated Plaintiffs’ rights to equal protection of the laws by impermissibly prohibiting gatherings with political or religious purposes, by allowing so called ‘essential’ organizations or persons to do what others similarly situated are not, and by applying criteria that treat those exercising first amendment freedoms in a discriminatory and dissimilar manner as to other gatherings,” the lawsuit states. 

Case in point, the experience of Blong Yang, owner of Eggrolls Inc. an Outagamie County restaurant. The lawsuit alleges Yang was stripped of his First Amendment rights when, on May 13, a Grand Chute police officer told him if he kept his business open for dining  “he would face potential criminal charges, imprisonment, and the possible loss of his business licence,” according to court documents. The business owner previously had informed the police department that he would open his restaurant despite the state lockdown order, which hurt his restaurant, according to the lawsuit.  

“At the very same time that Mr. Yang was threatened with imprisonment for opening his restaurant, the Defendants allowed the Walmart Store next to the restaurant to sell food touched by multiple people and handpicked prior to consumption,” the lawsuit states. “At the Walmart next to Mr. Yang’s restaurant, customers were free to buy an apple, a pear, a cucumber, or a mango that was touched by countless and unknown other shoppers and employees. Nothing, other than a purchase, prevented the consumption of that food prior to home arrival.”

In Winnebago County, plaintiff Jay Schroeder, a Republican candidate for the 55th Assembly District, told the Wisconsin Election Commission that Palm’s lockdown had made it difficult to gather signatures to get on the ballot, according to court documents. The extended stay-at-home order, which prohibited gatherings of nine or more people, prevented “in person political discourse,” restricting his First Amendment rights.  

Madison Marie Elmer of Walworth claims her First Amendment rights were violated when she was denied a permit to protest the lockdown orders at the State Capitol. Elmer was one of the organizers of the Re-Open Wisconsin rally on April 24, the day Evers’ original emergency lockdown order was supposed to end. Thousands showed up to protest, but outside the Capitol. 

“The denial indicated that Defendant Palm’s Order 28 prohibited the gathering, and threatened Ms. Elmer and anyone else who gathered with up to 30 days imprisonment,” the lawsuit states. “Even after the Wisconsin Supreme Court declared unequivocally that the provisions of Order 28 are substantively invalid, Ms. Elmer remains prevented from gathering with other Wisconsin residents at the State Capitol. 

The suit also includes plaintiffs such as Rev. Daniel Jay Quakkelaar  of Milwaukee,  who says his First Amendment rights to worship as he sees fit have been violated. He is the pastor of Friend of Sinners Mission Church. The state “Order 28 stripped him of his First Amendment Rights. The Local Orders by the Local Defendants continue to do so,” the lawsuit states. Places of worship have had to shut down in-person services because of the social-distancing restrictions. The Supreme Court ruling lifted those restrictions, but some local governments have maintained lockdown orders 

That’s a key complaint in the lawsuit, filed on behalf of the plaintiffs by Cedarburg attorney Joseph Voiland, a former Ozaukee County judge. 

“The Local Defendants entered new Local Orders which are substantially similar and in many instances use verbatim language regarding the activity prohibited and the people whose activities are declared ‘non-essential,’” the lawsuit states. They did so, Voiland asserts, in defiance of the Supreme Court ruling. 

“The Wisconsin Supreme Court rejected the notion that Wisconsin law allows ‘emergency” powers’ and orders to continue for ‘month after month.’ The court held that while the government can act at the time of an emergency because there is no time for deliberation or debate, “in the case of an ongoing pandemic, which lasts month after month,” the government may not “rely on emergency powers indefinitely’” the lawsuit states. 

Harassed at church 

A Milwaukee man says he was harassed by police officers for praying in a Catholic Church parking lot. 

The man, who asked not to be identified, said he prayed and read his spiritual Catholic book on the life of Padre Pio. Milwaukee’s extended COVID-19 orders have locked him out of his church. He said he missed taking the Eucharist and the sacrament of confession. 

“Yesterday .. I got out of my car since it was a little hot inside. I walked over to a bench and sat there in front of the blessed Virgin Mary statue. Guess what happens?” He wrote in an email. 

Police rolled in and told him to leave. They told him the church is “private property.” 

“I said I was reading and praying. The cop said, ‘No you are not praying.’ Maybe the cop didn’t see I have my hand folded in prayer,” the man said. “So in sadness and disappointing discouragement, I left and drove home kinda in tears.”

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