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April 6, 2020
2020AP608-OA
Wisconsin Legislature v. Evers
Nonsense. Neither the law nor common sense support the majority's tenuous and callous
order.
As passed by the Legislature, the law concisely explains the Governor's powers. It provides
that during these extraordinary times of a state of emergency, the Governor has the power to issue
certain orders. Specifically relevant here, Wis. Stat. § 323.12(4)(b) provides: "The governor
may . . . [i]ssue such orders as he or she deems necessary for the security of persons and property."
Further evidencing the extraordinary nature of current times, this court has never before
had the opportunity to interpret this particular provision of state law. But the interpretation is clear
given the familiar maxim that "[s]tatutory language is given its common, ordinary, and accepted
meaning, except that technical or specially-defined words or phrases are given their technical or
special definitional meaning." State ex rel. Kalal v. Cir. Ct. for Dane Cty., 2004 WI 58, ¶45, 271
Wis. 2d 633, 681 N.W.2d 110. With no court decision interpreting the term "security of persons,"
I turn to Merriam Webster's dictionary,7 which provides as the first definition, "the quality or state
of being secure: such as freedom from danger." "Security," Merriam Webster Online Dictionary
(2020), https://www.merriam-webster.com/dictionary/security.
COVID-19 is certainly a
"danger," and it is a danger that spreads more easily in large groups of people. By saying
otherwise, the majority simply ignores the plain language of the statute.
Underscoring the executive branch's ability to take action in circumstances such as these,
even the Secretary of the Department of Health Services is authorized to act. Specifically, Wis.
Stat. § 252.02(3) provides that "[t]he department may close schools and forbid public gatherings
in schools, churches, and other places to control outbreaks and epidemics." Even more broadly,
Wis. Stat. § 252.02(6) sets forth that "[t]he department may authorize and implement all
emergency measures necessary to control communicable diseases" (emphasis added). If the
Secretary of the Department, part of the executive branch, has the power to forbid public gatherings
to control outbreaks and epidemics, then surely the Governor as the head of the executive branch
has such power. Nevertheless, the majority takes the decision away from the executive branch
despite the statutes that place such a decision within its purview.
Further, the majority's misguided determination is out of step with common sense and will
have real consequences. When voters have been ordered to stay at home, many will make the
choice not to risk their health and the health of their loved ones by venturing outside to a potentially
crowded polling place. Voters who make this reasonable choice to put their health first will be
disenfranchised. Those voters who do show up, along with poll workers, and everyone with whom
they come in contact, will be put at needless risk of contracting a deadly virus.
7
See State v. Sample, 215 Wis. 2d 487, ¶21, 573 N.W.2d 187 (1998) ("For purposes of statutory
interpretation or construction, the common and approved usage of words may be established by
consulting dictionary definitions.").