The Wisconsin Supreme Court, in a 4-3 ruling, has declared Wisconsin’s “Safer at Home Order” unlawful, invalid, and unenforceable. See Wisconsin Legislature v. Palm, Case No. 2020AP765-OA (Wisc. 2020). The Court ruled in favor of the Wisconsin Legislature and struck down Emergency Order 28. The Court’s decision is effective immediately.

The Safer at Home Order was first issued on March 24, 2020 by Andrea Palm, Secretary-designee of Wisconsin’s Department of Health Services. That order, Emergency Order 12, was issued at the direction of Governor Tony Evers and required all individuals present in Wisconsin to stay at home or at their place of residence from March 25, 2020 through April 24, 2020, unless otherwise exempted.

The initial order was amended on April 16, 2020 by Emergency Order 28, which extended Wisconsin’s stay-at-home restrictions through May 26, 2020. Subsequent orders issued on April 20, 2020 and April 27, 2020 began to loosen certain restrictions. Wisconsin’s Legislature, however, brought an emergency legal challenge against Emergency Order 28, contending that the order had been invalidly issued. The Supreme Court heard arguments on May 5, 2020.

The Supreme Court’s decision turned on its interpretation and application of the statutory emergency rulemaking procedures established by Wisconsin’s Legislature. Secretary-designee Palm had contended that the Emergency Order was not a rule, and therefore that rulemaking procedures did not apply. In an opinion by Chief Justice Roggensack, the Court rejected that argument, holding that the order constituted a rule under its controlling precedent. Accordingly, the Court held that required rulemaking procedures set forth in Wis. Stat. § 227.24 were not followed in Secretary-designee Palm’s promulgation of the Emergency Order. Finally, the Court concluded that the Emergency Order imposed criminal penalties without following additional procedures under Wis. Stat. § 252.25.

Although the Legislature requested that any injunction against enforcement of the order be stayed for six days, the Court declined the invitation. Instead, the Court stated that any future law-making was the responsibility of the Legislature and the Department of Health Services. Thus, the Court’s decision is effective immediately.

In dissent, three justices asserted two different grounds for upholding Emergency Order 28. Justices Dallet and Walsh Bradley would have held that the plain language of Wis. Stat. § 252.25 allowed Emergency Order 28 to be issued without formal rulemaking procedures. They noted that the Legislature has bestowed broad powers on the Department of Health Services to act in emergencies, and contend that such authority was properly invoked by Secretary-designee Palm. Justice Hagedorn would have held that Wisconsin’s Legislature lacked standing to challenge issuance of the order.

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