SOURCE: Captain Steve Brancazio Boca Raton Police Department



What is a citizen who wants to follow the law to do when:

Wisconsin Governor Evers issued an executive order that to contain the spread of the deadly COVID 19 disease, people should stay at home and non-essential businesses should remain closed. 

Washington County Sheriff Martin Schultis has said failure to follow this order "is a criminal violation. It's an arrestable violation."  Kenosha County Sheriff Beth has also urged people to follow the order.  Milwaukee police are allowed to issue citations to people failing to comply with Governor Tony Evers' "Safer at Home."

However, Racine County Sheriff Christopher Schmaling has refused to enforce Gov. Evers emergency measures and enforce rules and orders to protect the public during a health crisis.  The medical profession, incidentally, disagrees with Sheriff Schmaling “I understand people wanting to verbalize how they feel and wanting to get back on their feet again, but we have to remember the greater good and the fact that we’re not going to achieve that if people are dying, and if we’re putting the health of our population at risk,” said family physician Dr. Shannon Daun.  The doctors opinion is joined by at least 36 other medical professionals.

Which sheriff is right?  Who knows?  The problem is a citizen should not be forced to decide when her liberty hangs in the balance.  Lanzetta v. New Jersey, 306 U.S. 451, 453 (1939)

Arbitrary enforcement of the law pose two problems: when criminal codes fail to clearly define the offense, citizens may not understand what conduct is prohibited and police are likely to enforce the law in an arbitrary and discriminatory manner.  Kolender v. Lawson, 461 U.S. 352, 357-58 (1983).  One of the problems with arbitrary enforcement is its capacity to further racial injustice in the criminal justice system.  After all, police have a tendency to enforce the law against any group that may happen to “merit their displeasure.”  Papachristou v. City of Jacksonville, 405 U.S. 156, 170 (1972).  This is the answer to those who say a vague law is a small price to pay for security of increased police stops.  The officer's infringement on liberty may seem to a majority of a community a small price to pay precisely because it was imposed on a minority community and not on them.  In Johnson v United States, 333 US 10, 13, 17 (1948) the Supreme Court stated that "[t]he point of the Fourth Amendment, which often is not grasped by zealous officers,"" is to protect "one of the most fundamental distinctions between our form of government, where officers are under the law, and the police-state where they are the law."  The basic policy or purpose behind the Fourth Amendment is to safeguard an individual’s privacy and protect individuals against arbitrary invasions by officials of the government.  Delaware v. Prouse, 440 U.S. 648, 653-54 (1979) (quoting Camara v. Municipal Court, 387 U.S. 523, 528 (1967)).  See also, Marshall v. Barlow’s, Inc., 436 U.S. 307 (1978); United States v. Martinez-Fuerte, 428 U.S. 543, 561 (1976); United States v. Ortiz, 422 U.S. 891, 895 (1975); Almeida-Sanchez v. United States, 413 U.S. 266, 270 (1973).

“[T]he dividing line between what is lawful and unlawful cannot be left to conjecture.”  Connally v. General Const. Co., 269 U.S. 385, 393 (1926).  Law enforcement does not have the discretion to pursue their personal predilections on an ad hoc, subjective and discriminatory basis.  Kolender v. Lawson, 461 U.S. 352, 357-58 (1983); Grayned v. Rockford, 408 U.S. 104, 108–09 (1972); Papachristou v. City of Jacksonville, 405 U.S. 156, 168-71 (1972). 

"[I]t will not do to hold an average man to the peril of an indictment for the unwise exercise of his . . . knowledge involving so many factors of varying effect that neither the person to decide in advance nor the jury to try him after the fact can safely and certainly judge the result."  Cline v. Frink Dairy Co., 274 U.S. 445, 465 (1927).  Critically, therefore, a citizen has a right to fair warning at a point in time prior to the state court litigation and contemporaneous with the act which the state seeks to punish for a violation of the law.

This means a person can only be punished fairly if he has notice before he acts.  As matter of fairness, retroactivity is not favored in the law.  Kaiser Aluminum & Chem. Corp., et al. v. Bonjorno, 494 U.S. 827, 837 (1990); Bowen v. Georgetown University Hospital, 488 U.S. 204, 208 (1988). 

Normally governors use executive orders for ceremonial purposes like honoring soldiers and police officers killed in the line of duty.  However in times of emergency, an executive order can do much more.

With the spread of the COVID-19 virus states like Deleware, New Jersey and Rhode Island delayed scheduled spring elections.  Chris Cillizza, Why in the world is Wisconsin still holding a primary on Tuesday?, CNN.com (Apr. 2, 2020, 3:35 PM); COVID-19 and Elections, National Conference of State Legislatures.  Following this trend, Gov. Evers issued Executive Order 74, much like the other states.  The executive order found that “as of April 5, 2020, 2,267 Wisconsinites have tested positive for COVID-19, 624 Wisconsinites have been hospitalized due to COVID-19, and 68 Wisconsinites have passed away as a result of COVID-19, 241,703 individuals in the United States have tested positive for COVID-19, and 5,854 have passed away as a result of COVID- 19, and, worldwide, more than 1,100,000 people have tested positive for COVID-19, and more than 62,000 people have passed away as a result of COVID-19.”  Therefore, every poll worker and voter who visited the polls, “faced a significant risk of exposure to someone infected with COVID19 by engaging in the process of in-person voting.”  In line with state and local public health officials who found that in-person voting on April 7 presented a "serious challenge to controlling the spread of COVID-19, " the governor postponed the election.

Hours after Gov. Evers issued Executive Order 74 postponing the election for two months, the conservative-controlled Wisconsin Supreme Court said he didn't have the authority to reschedule the race on his own.  The Court admitted that a “public health emergency [is] plaguing our state,’ but the Court said that was not the legal issue before the Court.  Rather the question was did the “Governor has the authority to suspend or rewrite state election laws. Although we recognize the extreme seriousness of the pandemic that this state is currently facing, we conclude that he does not.”

So just what is an executive order in Wisconsin?

Although there is no general statutory or constitutional provision establishing the scope and use of executive orders, under Article V, Section 4, of the Wisconsin Constitution the governor is granted broad authority:

[Article V] Section 4. "The governor shall be commander in chief of the military and naval forces of the state. He shall have power to convene the legislature on extraordinary occasions, and in case of invasion, or danger from the prevalence of contagious disease at the seat of government, he may .convene them at any other suitable place within the state. He shall communicate to the legislature, at every session, the condition of the state, and recommend such matters to them for their.c.onsideration as he may deem expedient. He shall transact all necessary business with the officers of the government, civil and military. He shall expedite all such measures as may be resolved upon by the legislature, and shall take care that the laws be faithfully executed."

There are also various statutes which permit the governor to issue orders pertaining to specified matters such as special elections under Wis. Stat. § 8.50 or emergency powers of the governor under Wis. Stat. § 323.10 (“If the governor determines that a public health emergency exists, he or she may issue an executive order declaring a state of emergency related to public health for the state or any portion of the state and may designate the department of health services as the lead state agency to respond to that emergency.”) and Wis. Stat. § 323.12(4)(b) indicating the governor can “[i]ssue such orders as he or she deems necessary for the security of persons and property.”  It is left to the Governor discretion to determine what is “necessary” to protect the public. Wis. Stat. § 323.12(4)(b) (“. . . as he or she deems necessary. . .”).  Finally, Wis. Stat. § 323.12(3) creates three separate duties a Governor shall take during an emergency: (1) “issue orders,” (2) “delegate such authority as is necessary to the [administrator of emergency management services],” (3) “and direct the [emergency management division] to coordinate emergency management activities.” (emphasis added).  Thus, in Executive Order 262, for instance, Governor Walker called a special election for Assembly District 58, “pursuant to article IV, section 14 of the Wisconsin Constitution and section 8.50 of the Wisconsin Statutes.”

Beginning with the Gov. Knowles administration in 1965, formal declarations designated ·as “executive orders" were employed to achieve various purposes not expresly authorized by statute. While his predecessors generally used mOre informal methods, Governor Knowles made frequent use of the executive order to establish a series of committees, councils, and task forces to conduct various studies and provide suggestions for possible legislation.  The Legislative Reference Bureau has noted that “fiscal, social and political environment in which governors conduct state business has changed drastically in recent years. As a result, the governor's job has become more complex and difficult and the public's expectations for state action to solve problems and provide services has risen proportionately. Thus, it is possible to view the increased number of executive orders issued in recent years in the context of the more active role the governor is required to assume in meeting the challenges of governing.”

Despite past actions by other governors similar to Executive Order 74, the Wisconsin Supreme Court said the order was not permissible.  Unlike with Gov. Walker, the Wisconsin Supreme Court read the governor’s powers narrowly. The Wisconsin Supreme Court recently held that Chapter 323 does not authorize the Governor to rewrite or suspend statutes and, therefore, ruled that he may not postpone an election set by state statute. Wisconsin Legislature v. Evers, Case №2020AP608-OA (Wis. Apr. 6, 2020)