ATTORNEY PAUL A. KSICINSKI 414-530-5214
ATTORNEY PAUL A. KSICINSKI
TOP 100 WISCONSIN CRIMINAL DEFENSE LAWYER
​414-530-5214
  • Home
  • References
  • PEER ENDORSEMENTS
  • PAST CASES
  • Blog
  • Contact
  • KNOW YOUR RIGHTS
  • How to deal with police
  • Practice Areas
  • About
  • Criminal Law Links
  • News

Discussion of current legal issues

Henry Nellum case selected by USA Network as a compelling homicide trial to keep an eye on in 2018

Button Text

What is a an executive order under Wisconsin law

4/17/2020

0 Comments

 
Picture

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)
 
0 Comments



Leave a Reply.

    Author

    These are reflections I have had about our criminal justice system.  Some of it may make sense, some of it might not.

    Archives

    March 2022
    February 2022
    January 2022
    December 2021
    November 2021
    October 2021
    September 2021
    August 2021
    July 2021
    June 2021
    May 2021
    April 2021
    February 2021
    January 2021
    November 2020
    October 2020
    August 2020
    July 2020
    June 2020
    May 2020
    April 2020
    March 2020
    February 2020
    January 2020
    November 2019
    October 2019
    September 2019
    August 2019
    July 2019
    June 2019
    May 2019
    April 2019
    March 2019
    February 2019
    January 2019
    December 2018
    October 2018
    August 2018
    July 2018
    June 2018
    May 2018
    April 2018
    March 2018
    February 2018
    January 2018
    December 2017
    November 2017
    October 2017
    September 2017
    August 2017
    July 2017
    June 2017
    May 2017
    April 2017
    March 2017
    February 2017
    January 2017
    December 2016
    November 2016
    October 2016
    September 2016
    August 2016
    July 2016
    June 2016
    May 2016
    April 2016
    March 2016
    February 2016
    January 2016
    December 2015
    November 2015
    October 2015
    September 2015
    August 2015
    July 2015
    June 2015
    May 2015
    April 2015
    March 2015
    February 2015
    January 2015
    December 2014
    November 2014
    October 2014
    September 2014
    August 2014

    Categories

    All

    RSS Feed

Powered by Create your own unique website with customizable templates.