Wisconsin Supreme Court Invalidates Safer at Home Order

May 14, 2020

Eight days after the Wisconsin Supreme Court heard oral arguments regarding the legality of Emergency Order 28, Wisconsin’s Safer at Home Order, the Court issued a decision invalidating the Order immediately (with the exception of the provision that closed schools for the remainder of the school year). The decision issued in Wisconsin Legislature v. Andrea Palm, No. 2020AP765 (May 13, 2020) relied on the procedural history of the order, rather than the substance and ramifications on Wisconsin’s businesses and citizens. In short, the Emergency Order was invalidated because the Wisconsin Department of Health Services (DHS) failed to abide by the rule-making procedures set forth in Wis. Stat. § 227.24.

On April 16, 2020, DHS Secretary Andrea Palm issued Emergency Order 28 which prohibited non-essential travel, ordered all businesses to cease activities (excluding minimum operations), and prohibited private gatherings, among other things. In issuing Emergency Order 28, Palm cited Wis. Stat. § 252.02 and asserted that she had the authority to issue the “order” pursuant to the authority granted to her by Wis. Stat. § 252.02.

An “order” is legally distinct from a “rule.” A “rule” is defined by Wis. Stat. § 224.01(13) as a “general order of general application….” A “rule,” unlike an “order,” requires an agency, like DHS, to go through the rule-making procedures set forth in Wis. Stat. § 227.24, which both parties in the case acknowledge DHS did not.

The Legislature, which brought the petition challenging Emergency Order 28, argued that the Emergency Order was not an “order” as asserted by Palm, but rather a “rule.” The Legislature also argued that because it was a “rule” that was not promulgated through the procedures set forth by Wis. Stat. § 227.24, Emergency Order 28 was invalid.

Relying on prior precedent, the Wisconsin Supreme Court concluded that Emergency Order 28 was a “rule” as defined by Wis. Stat. § 224.01(13). The controlling case, Citizens for Sensible Zoning, Inc. v. DNR, emphasized that the determination for whether something qualifies as a “rule” requires focusing on who is regulated by the order, not on the factual circumstances that led to the order. In this case, the Wisconsin Supreme Court determined that Emergency Order was a “general rule of general application” because it “regulates all persons in Wisconsin at the time it was issued and it regulates all who will come into Wisconsin in the future.”

After concluding that Emergency Order 28 was a rule not properly promulgated through Wis. Stat. § 227.24, the Court also reviewed the second issue raised in the petition: even assuming that Emergency Order 28 was properly issued, did the order exceed the scope of permissible actions under Wis. Stat. § 252.02? Palm argued that Wis. Stat. § 252.02 granted her the broad authority to “authorize and implement ‘all’ emergency measures ‘necessary’ to control communicable diseases…” As such, she argued that she was authorized to issue Emergency Order 28 and criminalize violations of the order.

The Court examined the various subsections of Wis. Stat. § 252.02 and concluded that the language of Emergency Order 28 went beyond what was authorized by the statute. For example, in looking at Subsection 4, which grants permission to promulgate rules for the “quarantine and disinfection of persons … infected or suspected of being infected by a communicable disease…,” the Court noted that Emergency Order 28 ordered the quarantine of every person – not just those infected or suspected of infection. The directives imposed by Emergency Order 28 well exceeded those powers authorized by Subsection 4. Ultimately, the Court returned to statutory construction and cited Wis. Stat. § 227.10(2m). That statutory provision provides that “No agency may implement or enforce any standard, requirement, or threshold, . . . unless that standard, requirement, or threshold is explicitly required or explicitly permitted by statute or by a rule that has been promulgated in accordance with this subchapter[.]” The Court concluded that Emergency Order 28 far exceeded the authority granted by Wis. Stat. § 252.02(3), (4), and (6) and Wis. Stat. § 227.10(2m) prevents DHS from relying on the broad language to issue such directives.

In sum, Emergency Order 28 was struck down as invalid because it was a “rule” – a “general order of general application.” As a “rule,” DHS was required to follow a specific process set forth in Wis. Stat. § 227.24. When DHS elected to simply issue an order and circumvent the rule-making procedure, it issued an illegal and invalid order.

When the Legislature filed its petition seeking an injunction on Emergency Order 28, it initially requested that the Supreme Court stay any injunction for 6 days after the decision was to be issued. Presumably, the request was to facilitate an orderly transition if Emergency Order 28 was invalidated. However, the Supreme Court declined to stay the order invalidating the order, stating that because “more than two weeks have passed since [the Court] began [its] consideration of this case… [the Court] trust[s] that the Legislature and Palm have placed the interests of the people of Wisconsin first and have been working together in good faith to establish a lawful rule that addresses COVID-19 and its devastating effects on Wisconsin.”

The Supreme Court’s decision invalidates Emergency Order 28 – with one notable exception: The decision exempts Section 4.a. of Emergency Order 28, which closed all public and private K-12 schools for the remainder of the 2019-2020 school year. All prohibitions on business closures, public and private gatherings, and travel are invalidated.

In the short time since Emergency Order 28 was invalidated, local governments have already began issuing local public health orders to replace the prohibitions in Emergency Order 28. For example, Dane County issued an Order shortly after Emergency Order 28 was invalidated, which adopted the language of Emergency Order 28 with two modifications to definitions. See Adopting Safer at Home. There are legal issues similar to those raised by the Wisconsin Supreme Court that may also apply to local orders.

A copy of the decision in Wisconsin Legislature v. Andrea Palm can be located here: https://www.wicourts.gov/sc/opinion/DisplayDocument.pdf?content=pdf&seqNo=260868.