By Executive Director, Amy Bliss
The Wisconsin Supreme Court has issued a 4-3 decision in Legislature v. Palm, the Department of Health Services’ (DHS) “Safer at Home” order unenforceable and immediately striking down the order. The court held that the Safer at Home order is a “rule” that was required to go through statutory rulemaking processes and that the order exceeds DHS’s authority under Wisconsin’s pandemic statutes.
Though the statewide order has been struck down, Dane County and Milwaukee have already announced they will continue to enforce shelter-in-place guidelines. This trend might continue with other cities or counties if they have their own health departments.
According to WisPolitics and the Wheeler Report, Gov. Evers told reporters on Wednesday evening that the administration will soon be releasing framework for an emergency rule to address the pandemic within the parameters of the court decision.
Chief Justice Roggensack, Justice R. Bradley, Justice Kelly, and Justice Ziegler joined in the majority opinion. Several justices also wrote concurrences expanding on the court’s reasoning. Justice Hagedorn, Justice Dallet and Justice Walsh Bradley dissented.
After Gov. Evers and DHS-designee Andrea Palm extended Wisconsin’s Safer at Home Order to May 26 under Emergency Order #28, the Republican-led Legislature filed this lawsuit challenging DHS’s authority to issue such an order. In its ruling on May 13, the Supreme Court agreed with the Legislature that:
The emergency order is a “rule” under Wisconsin’s administrative procedure law and should have gone through the statutory emergency rulemaking process, which allows for legislative oversight and public input.
Wis. Stat. § 227.01(13), defines a rule, in part, as a “general order of general application.” The court concluded that the Safer at Home order was a “general order of general application” because it regulates a class of all Wisconsinites and anyone else who enters the state. Therefore, because of its broad application, the order becomes a rule that must go through rulemaking requirements, including legislative oversight, in Ch. 227.
The court also held that DHS cannot create and enforce criminal penalties for violation of an order.
Addressing the unusual circumstances of the current pandemic, the court acknowledged that the governor has special emergency powers under § 323.10 to implement emergency measures. The 60 day emergency period declared by the Governor would give DHS enough time to promulgate rules to address an emergency if necessary. In this case, Gov. Evers’s emergency declaration expired in mid-May, and DHS illegally sought to extend the Safer at Home measures beyond that date without rulemaking.
Even if the order does not violate Wisconsin rulemaking laws, the order exceeds DHS’s authority under Wis. Stat. § 252.02.
The court found that authorities granted by statutes to address epidemics in Ch. 252 do not support the Safer at Home ban on all nonessential and the closure of all nonessential businesses. 2011 Act 21 prohibited state agencies from implementing standards that were not explicitly permitted by statute. Te court found that in the Safer at Home order DHS went beyond the parameters for addressing epidemics that the legislature laid out in Ch. 252. While DHS can close things like schools and churches under Ch. 252, DHS does not have the authority to act as broadly as closing all businesses and banning travel. (The court notes that it is not invalidating the provision of the order that closes schools.)
The court declined to take up the Legislature’s argument that DHS acted arbitrarily and capriciously by failing to provide a reasoned basis for distinguishing between essential and nonessential businesses.
The Legislature had asked the Wisconsin Supreme Court for a temporary injunction of the Safer at Home order but with several days of lead time for DHS to promulgate an emergency rule to lawfully enforce the order. However, the court decided to enjoin the emergency order immediately, as DHS and the Legislature have had more than two weeks since the lawsuit was filed to begin working on an administrative rule.