COVID-19; Ch. 6: The Wisconsin Supreme Court and the Big Red Barber Shop

Democracy and Us on the Other Side of COVID-19

May 18, 2020

“Isn’t it the very definition of tyranny for one person to order people to be imprisoned for going to work, among other ordinarily lawful activities?”

Wisconsin Supreme Court Justice Rebecca Bradley during oral arguments, Wisconsin Legislature v. Palm, May 5, 2020

We’re good people, we don’t want to do this, but we feel somebody needs to do this to try open up other people’s eyes, Albany’s eyes.”

Randi Cary, partner of Lisa Cary, owner of the Big Red Barber Shop, May 2020

Some two decades from now—the time it takes for current events to age like fine wine and for historians to sharpen their minds and pencils—I predict someone will document this tortured time in American history with a book branding 2020 with its most apropos title, The Lost Year.  Let us but pray the author needn’t pluralize.

It’s not just the Ithaca weather that makes us feel we’re like still locked in March.  Since the coronavirus burst into full bloom and the executive orders blew our way in the seasonal wind, our collective life’s clock has stopped.  No school.  No college.  No nights out.  No Cornell Graduation.  Soon, no Ithaca Festival; likely, no county fairs, barbecues, or concerts.  No nothin’.  And for our most unlucky:  no jobs, no money, and no hope.  Only in recent days has Upstate taken its first timid, micromanaged steps towards a restart.  We’re like survivors peeking out cellar doors after a tornado.  House gone; but life’s still with us.  Now what?

Powerful, yet Popular: NY Gov. Andrew Cuomo’s Favorability Rating. Source: Sienna College, April 27, 2020

Be forewarned.  What I write here is not politically correct.  It will not toe the Democratic line. I may slaughter sacred cows.   I will not heap vaunted praise on a New York Governor whose approval rate, at last check, stands somewhere in the upper seventies.  I write not as Bob Lynch, the public official, but as Bob the private citizen, a man who insists on reasoned, independent thought, not intellectually-vapid, conformist group-think.

I despise the tribalism that grips our democracy, both from Washington on down, and from Enfield on up.  Just because I criticize our Governor and our county’s officials does not equate to my endorsement of Donald Trump.  Journalists, scholars and pundits much wiser than I have spilled barrels of ink and consumed endless hours on cable news these recent months documenting the myriad of ego-driven, election-obsessed, intellectually-clueless pronouncements and practices of our President.  I need not pile on.  This essay sets boundaries.  I go not where others trample the meadow, but where too few demonstrate courage to journey.

Disagree with me, if you must.  I welcome divergent perspectives.  Just acknowledge my freedom to speak my mind as I acknowledge yours as well.  Understand that this is my forum of choice.  As Ronald Reagan so famously told a newspaper editor at a 1980 New Hampshire debate, “I’m paying for this microphone.” (I did so here by loaning my campaign the funds that built this website.)  Let’s start.

On May 13th, a divided, Republican-dominated Wisconsin Supreme Court struck down Democratic Governor Tony Evers’s manipulative attempt to extend a statewide stay-at-home order over GOP-led legislative objections.

According to the Washington Post, Gov. Evers’s original mid-March Executive Order was time-limited to April 24th.  Wishing to extend it further to May 26th, and being legislatively powerless to act, Evers engineered the extension through his Health Services Secretary-designee, Andrea Palm.  She acted whereas he could not.  Republican legislators sued.  The State’s Highest Court, 4-to-3, clipped Palm’s wings, urging the sides to cooperate, not fight.

“The justices wrote that the court was not challenging the governor’s power to declare emergencies, ‘but in the case of a pandemic, which lasts month after month, the Governor cannot rely on emergency powers indefinitely,’” reported the Post.

Wisconsin Supreme Court Justice Daniel Kelly

More pointedly, in oral arguments one week earlier, Wisconsin Justice Daniel Kelly put the question of administrative overreach directly to the State’s Assistant Attorney General Colin Roth, who’d argued Evers’s case before the bench.  Asked Justice Kelly:

“The secretary all by herself created a criminal law…. Your position is the secretary can identify behavior that is not otherwise criminal, that she can, all by herself, sit down at her computer keyboard, write up a description of behavior, and make it criminal?”

The conservative blog, Empower Wisconsin reports Roth conceded the secretary had done just that.

To me, administrative aggrandizement of power stands as the deepest wound inflicted on American democracy by the COVID-19 pandemic.  Governors act because they choose to do so.  Chief Executives read the polls, play to panic, and then willingly, arrogantly ignore constitutionalism, separation of powers, and due process.  A frightened public grants them license.  A pandering press frames false choices between autocracy and death.  Often only when government stands divided and jurists have an extra helping of moxie does liberty emerge to fight another day.  Kudos to those courageous four jurists on the Badger State’s Supreme Court.  I kinda’ wished I lived in your state.

Of course, one cannot transport Wisconsin law to the Empire State.  But let’s try our best.

Since declaring a State disaster emergency from COVID-19 March 7th, New York Governor Andrew M. Cuomo has proudly and imperiously supplemented that edict with as many as—count them—31 multi-faceted Executive Orders; the suspensions of laws and the imposition of impulsively-scripted new ones that have closed hair salons, padlocked schools, banned family gatherings and forced us all to live our lives (masked, please) in suspended animation. Sometimes, Cuomo’s orders claim a foundation in science; at others, seeming impulse.  Often, we do not know what’s headed down that symbolic I-88 turnpike from Albany until our Chief Executive proclaims his latest visionary precaution at his newfound forum of power and access, the daily noontime news conference.

While Wisconsin has its own laws, we, too, have ours.  Every Cuomo Executive Order claims legal authority in Section 29-a of Article 2-B of New York’s Executive Law.  Bet you’ve never read it.  But I have, and it’s an eye-opener.  In truth, we New Yorkers don’t stand all that far apart from our cheeseheaded brethren, except, perhaps, in our lack of political resolve.

As Governor Cuomo rightly claims, Executive Law § 29-a authorizes him to:

“temporarily suspend any statute, local law, ordinance, or orders, rules or regulations, or parts thereof, of any agency during a state disaster emergency if compliance with such provisions would prevent, hinder, or delay action necessary to cope with the disaster or if necessary to assist or aid in coping with such disaster.” 

Epidemics qualify.  Authorized Executive Orders may last no longer than 30 days at a time.  However, perhaps distinct from Wisconsin’s, our Governor may extend the suspension of emergency-impairing laws for additional month-long intervals “upon reconsideration of all of the relevant facts and circumstances.”

So much for suspensions.  But wait.  How about the more intrusive edicts; those banning family gatherings, closing stores and masking us all?  Whenever those such edicts are imposed, Cuomo always recites a slightly different portion of  Section 29-a, which states:

“The governor, by executive order, may issue any directive during a state disaster emergency declared in the following instances…” (wherein “epidemic” is listed).

Note that this second sentence of § 29-a follows the first.  Both sentences fall under the heading of “Suspension of Laws,” and both remain part of the same numbered subsection—I know, geeky this paralegal has become.  But the law’s second sentence flows from its first.  Does this statutory authority cloak our exalted leader with the power to craft wholly new executive laws, or just suspend existing ones? Indeed, is Andrew Cuomo no better than Wisconsin’s Andrea Palm, who, by a judge’s conclusion, criminalized behavior bound only by the constraints of her Office 365?

But wait, The Executive Law clamps more limits on Cuomo’s purported source of authority: 

  • Executive Law § 29-a(1) cautions that the orders previously cited to cope with disaster, “must be necessary to cope with the disaster and may provide for procedures reasonably necessary to enforce such directive;”
  • Subsection 2(b) of this same law qualifies that, “no suspension or directive shall be made which is not in the interest of the health or welfare of the public and which is not reasonably necessary to aid the disaster effort” [my emphasis];
  • Subsection 2e states that, “any such suspension order or directive shall provide for the minimum deviation from the requirements of the statute, local law, ordinance, order, rule or regulation suspended consistent with the goals of the disaster action deemed necessary” [again, my emphasis]; and
  • Subsection 2(f) prescribes that, “[W]hen practicable, specialists shall be assigned to assist with the related emergency actions to avoid needless adverse effects resulting from such suspension.”

Has anyone challenged any of Andrew Cuomo’s orders on grounds of necessity or reasonableness?  Has anyone insisted on only a “minimum deviation” from normal behavior?  Has anyone demanded expert consultation and concurrence before the Cuomo executive hammer falls?  I haven’t heard of it.

There’s always a possibility New York’s courts long ago affirmed the aggrandizement of power our Governor now wields without challenge.  Quick, find me McKinney’s compilation of cases.  Nope, cannot do.  Cuomo’s orders closed the Cornell Law Library, like most everything else.

And lest you think the Executive Law inherently grants our Governor carte blanche to act as king, take note of Section 29-a’s final paragraph:

“The legislature may terminate by concurrent resolution executive orders issued under this section at any time.”

Ha!  If only New York did not have the Cowardly Lion of Legislatures.  We elect 113 State Senators and Assemblymembers every two years.  Has anyone heard even a peep of protest from the Democratic majorities which hold a lock on Albany’s lawmaking power?  I have not.  The Legislature remains in session.  Yet those who should be making the laws—even to affirm gubernatorial desires—remain silent, cowering under the bed, while Andrew Cuomo gleefully, unilaterally, grinds Albany’s sausage on their behalf.  This is not democracy.  And the longer arrogance prevails, the more it becomes engrained in Empire State politics and culture.  Like face masks and zoom meetings, executive overreach will quickly become the new political normal.

Which brings us to the Big Red Barbershop.

Offender or Patriot? Photo courtesy of the Ithaca Times

Lisa Cary owns the Big Red Barbershop in Collegetown.  As with all other stylists statewide, Executive Order 202.7 shut down her one-chair, one-barber practice March 21st.  It won’t reopen until the Governor says it can.  Meanwhile, the rent’s due, bills pile up, and Lisa’s unemployment application got tangled up somewhere.  She told the Ithaca Times she felt backed into a corner.

“It comes to a point where you say, do you risk losing everything you have or do you risk opening up?” said Randi Cary, Lisa’s partner. “You just have to go with your instincts.”

On Monday, May 11th, those instincts led the Cary’s to defy Executive Order 202.7.  They reopened, instituted maximum precautions, clipped some 30 scalps in six hours, and then got that ominous call from the Tompkins County Health Department.  Shut down, they were told.  So they did, fearing potential state fines or even loss of Lisa’s barber’s license.  We’re told police had been alerted, just in case.

“I’ve owned this shop for 17 years. It would break my heart, there’s no way I’m going to let my shop go,” Lisa told the Times

The Cary’s want to take the State to court.  They’re soliciting contributions to pay legal expenses.  I hope the couple slaps down Albany’s heavy hand.  Someone should.  I also wished I’d known of their reopening. I’d have been there.  I’m tired of COVID-hair.

Yes, the Cary’s broke the law, Andrew Cuomo’s law.  But to those who slight me for extending them my sympathy, I must ask:  How does a barber’s defiantly clipping heads of hair differ from one’s standing at the gates of Crestwood to protest underground gas storage?  Principled civil disobedience holds a cherished seat in American democracy.

And can someone tell me when Andrew Cuomo got his last haircut?  I’m sure it was more recently that March 20th, when I last got mine, beating the deadline by just one day.  Or for that matter, when did President Trump last visit his never-seen tanning bed?  It always seems the laws that imprison the rest of us—and impoverish our most humble service providers—have a way of bypassing the powerful and the elite.

Someone please tell me why shops like Lisa’s cannot open, other than that Andrew Cuomo says they can’t?  Could not seating be limited?  Masks mandated for both barber and patron?  Fresh, laundered aprons for every client?  Chair arms sanitized after every cut?  Sure they could, especially in a county where only one-tenth-of-one per cent of the population has contracted COVID-19, where all but about two dozen have recovered, and where no local person has died.  They could, if only bureaucrats could distinguish forests from trees.

Earlier this month, our County’s Public Health Director took time at a County Legislature meeting to lecture us all to be extra-safe and mask ourselves when going down the office hall to the bathroom or walking the sidewalk.  Who knows, we might pass another and violate social distancing.  Yet all the while, for hours, at two separate venues, the Director and other county officials, unmasked, sat less than six feet from their colleagues.  No, I don’t fault them for what they did.  Just please don’t nag me about my own imperfect conduct.

How often have you seen Andrew Cuomo wearing his mask?  Certainly not at those noontime news fests.  And of course, President Trump has proudly refused to wear his.  Why?  I have a theory.  A face mask connotes weakness, sissified submission.  Better to be the commanding general who fears no evil; display courage in the face of a pandemic.  Just make sure that all those lesser types wear their cloth coverings, surrendering to both the disease and to you.

I shake my head when I see that well-intentioned lone cyclist pedaling, surely puffing, uphill from the Taughannock Gorge bridge on Route 96, face mask dutifully over mouth and nostrils.  Propaganda works.  Either he has been convinced that COVID-19 germs swarm around him in nature like flies, or he fears social expulsion if spotted bare-faced.  Yes, in 20 years, historians will look back at these times.  We may have done a few things right.  But we’ve surely done a hell of a lot of things wrong.  We’ve let panic overpower common sense and reason.  We’ve ceded power to the power-hungry.  We’ve allowed judicial reason to take a back seat to our quest for safety at all cost.  And we’ve placed the illusion of security above the preservation of liberty.

Except, perhaps, in Wisconsin.  Hooray for those reasoned judges.  And for that Collegetown barber with guts.  Power should have its limits.  Bravery rescues democracy.


Note: You can read about the Big Red Barbershop’s one day reopening at: