May 14, 2020

On May 13, 2020, the Wisconsin Supreme Court issued its decision on the viability of Department of Health Services Order No. 28, which limited business, travel, and other activities until May 26.  It held that Secretary of Health Services Andrea Palm did not have authority under state law to issue this order, and so the Court declared it unlawful, invalid, and unenforceable.
What the Court Did Not Decide:  The Court expressly did not decide the limits of Governor Evers authority to issue orders in connection with the pandemic (paras. 1, 41) and did not rule on Order No. 31, which created the Badger Bounce Back Plan (para. 8).  The Court's decision was not based on the soundness or medical appropriateness of Secretary's Palm's Safer At Home order, but only whether she had the necessary authority to issue the order.  Finally the Court did not invalidate local orders related to the pandemic.  The City of Milwaukee, City of Racine, portions of Milwaukee County (incl. West Allis, Shorewood, Franklin, South Milwaukee, and Wauwatosa), Rock County and Kenosha County, for example, all have Safer At Home Orders in place that were not affected by the Court's ruling.  Please check your local county and city requirements as many local authorities have acted or are acting right now to restore some form of mandatory isolation.
What the Court Warned:  The Court heard the inconsistent request of the Legislature to nullify Order No. 28, but also to stay its ruling for six days, presumably so that the Legislature and Department of Health Services could jointly issue guidance or rules for the State.  In refusing to delay the effectiveness of its decision, the Court ruled at para. 57, "However, more than two weeks have passed since we began our consideration of this case. Therefore, we trust that the Legislature and Palm have placed the interests of the people of Wisconsin first and have been working together in good faith to establish a lawful rule that addresses COVID-19 and its devastating effects on Wisconsin. People, businesses and other institutions need to know how to proceed and what is expected of them. Therefore, we place the responsibility for this future law-making with the Legislature and DHS where it belongs."  (emphasis added).  All branches of our state government recognize the potential public health devastation and chaos of an uncontrolled reopening.  In addition to leaving the Badger Bounce Back Plan untouched for now, the Court has essentially urged the Legislature and Department of Health Services to get to work, so Wisconsinites "know how to proceed and what is expected of them."
What the Presbytery Recommends:  We continue to recommend that our congregations not resume in-person worship or other activities in our church buildings until the public health gating requirements are met, as set out in the Presbytery's guidance for reopening.  Public health advisories have not been challenged on substantive grounds, and the science tells us unequivocally that COVID-19 poses a risk of severe illness and death.  The Badger Bounce Back Plan remains in place, guiding us through Phases 1-3, of a safe reopening.  With gladness, we are seeing that some of the necessary indicators of public health are improving due to the caution we've exercised so far.  With continued diligence, we can look forward to entering Phase 1 before long.  The national Opening Up America Again plan on which our state plan was modeled also remains in effect.  However, until the Legislature and the Department of Health Services can jointly advise us on an appropriate path forward, as the Supreme Court urges, we cannot recommend resuming in-person gatherings.  Particularly if our members or visitors choose not to shelter in place in other aspects of their daily lives, the risk of a spike in infections from a church gathering is unreasonably high.  Our love for you and our sacred command to love our neighbors compel us to seek your safety first. 
We are reminded again of Paul's words to the church in Corinth: "' All things are lawful,' but not all things are beneficial. 'All things are lawful,' but not all things build up.  Do not seek your own advantage, but that of the other. "  (1 Cor. 10:23-24 NRSV).   

Rachel Yates, Presbytery Executive
Christian Boyd, Presbytery Stated Clerk
Judy Jaggard, Presbytery Moderator