April 16, 2021 – Ruling on a moot issue that will only guide future action, the Wisconsin Supreme Court has confirmed, once again, that a statewide emergency order limiting capacity at restaurants, bars, and other indoor facilities was invalid and unenforceable.

Then-Department of Health Services (DHS) Secretary Andrea Palm issued Emergency Order No. 3 in October 2020, expiring 30 days later, to control the spread of COVID-19 in Wisconsin. It limited indoor gatherings to 25 percent of total occupancy limits.

The emergency order exempted certain entities, including daycare centers, schools, government and tribal facilities, health care centers, and other gatherings protected by the First Amendment, such as churches and political rallies. But it did not exempt restaurants and bars, and the Tavern League of Wisconsin sued to block the order.

The order cited Wis. Stat. section 252.02(3) for its authority. That statute says DHS “may close schools and forbid public gatherings in schools, churches, and other places to control outbreaks and epidemics.”

In Tavern League of Wisconsin Inc. v. Palm, 2021 WI 33 (April 14, 2021), a 4-3 majority ruled that Palm did not have authority to issue the emergency order.

Three justices concluded the order constitutes a “rule” and DHS did not follow procedures to promulgate the rule. Justice Brian Hagedorn did not join the lead opinion but joined its mandate based on stare decisis, precedent from a prior ruling last term.

A supreme court majority acknowledged and ruled that the case presented a moot issue, since the order expired in November 2020. But a majority proceeded on the merits under mootness exception to decide an “issue of great public importance.”

Order Constitutes a Rule: Stare Decisis

The ruling follows a similar ruling last year, in Wisconsin Legislature v. Palm, 2020 WI 42 (May 13, 2020), in which a 4-3 majority blocked a statewide “safe-at-home” order.

In that case, a majority concluded DHS Secretary Palm improperly issued the order without following administrative rulemaking procedures. But there were five separate writings in that case, including three dissents and two concurrences.

The majority in that case included Justice Daniel Kelly, who is no longer on the court (Justice Jill Karofsky assumed his seat after last year’s April election).

Justice Brian Hagedorn dissented, concluding the safe-at-home order was not subject to rulemaking procedures because it was not a rule of general applicability – it applied to specific factual circumstances – and DHS had statutory authority to issue the order.

This time around, Justice Hagedorn was the deciding vote for the majority, grounding his decision on stare decisis. That is, Justice Hagedorn fund that the present case presents the same issue that was already decided in Wisconsin Legislature v. Palm.

“Some details have changed, but this case arises because Palm issued another order doing exactly what this court said she may not do: limit public gatherings by statewide order without promulgating a rule,” Justice Hagedorn wrote in a concurrence.

Palm hopes to achieve a different outcome this time by seizing on some of the vulnerabilities in last term's decision,” Justice Hagedorn continued.

“To be sure, the court's rationale in Palm was, in some respects, incomplete. But creative efforts to engineer a different result from an indistinguishable set of facts would, in my view, be a departure from basic principles of judicial decision-making.”

Hagedorn did not join the lead opinion by Chief Justice Patience Roggensack, only the mandate that a lower appeals court decision should be affirmed on stare decisis.

The lead opinion by Chief Justice Roggensack, joined by Justice Annette Ziegler (the new chief justice as of May 1) and Justice Rebecca Bradley, concluded that Emergency Order 3 meets the definition of a rule and “should have been promulgated according to rulemaking procedures set forth in Wis. Stat. ch. 227.”

Dissent

Justice Ann Walsh Bradley dissented, joined by Justice Rebecca Dallet and Justice Jill Karofsky, concluding the lead opinion’s engaged in improper statutory interpretation of section 252.02(3) in reaching its conclusion, and stare decisis does not apply.

“The Palm decision, on which the mandate of this court hinges, did not decide the question now before us and did not even attempt to interpret § 252.02(3),” Justice A.W. Bradley wrote.

“And even if Palm constituted precedent for interpretation of this statute, it falls within the well-recognized exceptions to according precedential adherence – the Palm decision is both unsound in principle and unworkable in practice.”

The dissenters said the plain language of the statute, section 252.02(3), gives DHS authority to forbid public gatherings during pandemics, and to do so quickly without going through a time consuming rulemaking process.

“It is authorized by the plain language of § 252.02(3) and DHS need not go through the cumbersome rulemaking process to do what the statute plainly allows,” she wrote.