May 14, 2020 – The Wisconsin Supreme Court issued a 4-3 decision yesterday blocking an extension of a statewide safe-at-home order that was set to expire May 26, meaning the statewide order impacting individuals and businesses is no longer in effect.

Through more than 150 pages and seven separate writings, the justices debated the authority of the state’s Department of Health Services (DHS) to issue orders under laws that govern DHS power to prevent and contain communicable diseases as well as procedures that state agencies must follow in promulgating emergency rules.

Chief Justice Patience Roggensack wrote a lead opinion – joined by Justices Rebecca Bradley, Daniel Kelly, and Annette Ziegler – concluding DHS Secretary Andrea Palm improperly issued the order without following administrative rulemaking procedures.

As a result, Emergency Order 28 – which required all Wisconsin residents to stay at home with some limited exceptions, such as travel to grocery and other “essential businesses” but limited the operations of “nonessential” businesses – is unenforceable and no longer in effect. The decision took effect immediately, without delay.

No Delay

The petitioner, the Republican-controlled Wisconsin Legislature, had asked for any decision in its favor to be delayed by six days to allow DHS to promulgate an emergency rule in collaboration with the Legislature. But the court did not do that.

In a concurring opinion, Chief Justice Roggensack reiterated that the decision is effective immediately and suggested enforcement of the court’s decision should be delayed until May 20, 2020. “However, I trust that the parties will place the interests of the people of Wisconsin first and work together in good faith to quickly establish a rule that best addresses COVID-19 and its devastating effects on Wisconsin,” she wrote.

Justices Brian Hagedorn, Anne Walsh Bradley, and Rebecca Dallet all filed dissenting opinions. Hagedorn’s 51-page dissent was joined by Justices A.W. Bradley and Dallet.

The dissenters concluded that the safe-at-home order (Emergency Rule 28) was not subject to emergency rulemaking procedures because the order was “not an order of general application” but an order applying to a specific factual circumstance.

Justice Hagedorn also concluded that the Wisconsin Legislature did not have standing to file the original action challenging the safe-at-home order extension.

“Because this is a challenge to executive branch enforcement of clearly on-point statutes, I conclude the legislature – as a constitutional body whose interests lie in enacting, not enforcing the laws – lacks standing to bring this claim,” he wrote.

“To the extent we countenance an argument that Wis. Stat. § 252.02 grants too much power to DHS, we are allowing the legislature to argue its own laws are unconstitutional, a legal claim it has no authority to make.”

Safe-at-Home Orders

Democratic Gov. Tony Evers declared a public health emergency on March 12 (Executive Order No. 72), invoking a statute (Wis. Stat. § 323.10) that gives DHS authority to take emergency action to respond to public health emergencies.

But a state of emergency declaration cannot exceed 60 days, “unless the state of emergency is extended by joint resolution of the legislature.” That is, the governor’s declaration could not extend beyond May 11 without the legislature’s consent.

Under the governor’s public emergency declaration and noting the increasing spread of coronavirus statewide, DHS on March 24 issued a safe-at-home order (Emergency Order 12), mandating that individuals stay at home, with some exceptions for essential activities, essential government functions, essential business operations, essential travel, and special situations. That order expired on April 24, 2020.

However, on April 16, DHS Secretary Palm issued Emergency Order 28, which extended the safe-at-home order to May 26 and imposed school closures the remainder of the academic year but eased some restrictions to allow basic business operations.

The Wisconsin Legislature filed an original action directly to the Wisconsin Supreme Court to challenge the extension imposed by Emergency Order 28.

The legislature argued that since the governor’s emergency declaration could only be extended beyond May 11 with the consent of the legislature, DHS had no authority to extend the safe-at-home order beyond May 11 without the legislature’s consent.

The legislature also argued that DHS could only extend the safe-at-home order by going through an emergency rulemaking process, which includes legislative oversight.

Even if the legislature conferred these DHS powers, the petitioners’ brief noted, Emergency Order 28’s safer-at-home mandate is unlawfully “arbitrary and capricious” in classifying businesses as “essential” or “nonessential.”

DHS, on the other hand, argued that DHS has broad statutory authority to prevent, control, and eradicate communicable diseases, and the communicable disease management statutes on which the order is based are legislatively approved.

The court accepted the case, Wisconsin Legislature v. Palm, and held oral arguments on May 5 via videoconference. Yesterday, the court issued a 4-3 decision in favor of the Wisconsin Legislature, blocking the safe-at-home extension.

Emergency Management

The Justice Department, on behalf of DHS, argued that the safe-at-home extension was authorized by statutory provisions that grant DHS broad powers to impose health and safety measures to combat the spread of communicable diseases such as COVID-19.

For instance, Wis. Stat. section 252.02(3) says DHS “may close schools and forbid public gatherings in schools, churches, and other places to control outbreaks and epidemics” and section 252.02(6) says DHS “may authorize and implement all emergency measures necessary to control communicable diseases.”

Section 252.02(4) says DHS “may promulgate and enforce rules or issue orders for guarding against the introduction of any communicable disease into the state, for the control and suppression of communicable diseases, for the quarantine and disinfection of persons, localities and things infected or suspected of being infected by a communicable disease,” including rules and orders for specific municipalities.

But the court’s majority did not agree that these provisions allow DHS to impose a stay home order without legislative approval beyond 60 days after a public health emergency is declared by the governor.

“The Governor could declare an emergency and respond accordingly,” Chief Justice Roggensack wrote. “But in the case of a pandemic, which lasts month after month, the Governor cannot rely on emergency powers indefinitely.”

The majority noted that “60 days is more than enough time to follow rulemaking procedures pursuant to Wis. Stat. § 227.24,” which governs emergency rulemaking.

Emergency rulemaking procedures include provisions for legislative oversight through a joint committee for review of administrative rules.

The majority concluded DHS must still follow rulemaking procedures when issuing orders of general applicability, despite statutes that govern DHS authority to manage communicable diseases.

“Palm points to statutes that she asserts give her broad authority to impose regulation; but it does not follow she can impose regulation without going through a process to give the people faith in the justness of the regulation,” the chief justice wrote.

Separate Writings

As noted, Justice Hagedorn filed a dissent – joined by Justices Dallet and A.W. Bradley – concluding Emergency Order 28 was not subject to rulemaking procedures because it was not a rule of general applicability and DHS had statutory powers to act.

“The legislature may have buyer’s remorse for the breadth of discretion it gave to DHS in Wis. Stat. 252.02,” he wrote. “But those are the laws it drafted; we must read them faithfully whether we like them or not.”

Justice Hagedorn also concluded that “chapter 252 contains separate authority that is not, at least on its face, dependent on a governor’s emergency declaration.”

Justice R. Bradley wrote a 22-page concurring opinion, joined by Justice Kelly, concluding the DHS Secretary overstepped her authority with the safe-at-home order.

“It is insufficient for the DHS secretary-designee to point to the legislature's statutory delegation of lawmaking power as the source of her authority to dictate how the people must conduct their lives, without considering the constitutional ramifications of such a broad statutory interpretation – namely, the threat to the liberty of the people,” she wrote.

Justice Kelly wrote a separate, 24-page concurrence, joined by Justice R. Bradley, to note that the broad authority asserted under Wis. Stat. section 252.02 (powers and duties to address communicable diseases) would violate the separation of powers doctrine.

“An agency cannot confer on itself the power to dictate the lives of law-abiding individuals as comprehensively as the Order does without reaching beyond the executive branch’s authority,” Justice Kelly wrote.

Justices A.W. Bradley and Dallet filed separate dissents. Justice A.W. Bradley noted confusion on whether there is a temporary stay of the decision or not, noting the chief justice’s concurrence suggested enforcement of the decision should be delayed.

“I fail to see the wisdom or the equity of invalidating Emergency Order 28 and, at least for the time being, leaving nothing in its stead,” Justice A.W. Bradley wrote.

Justice Dallet wrote a dissent, concluding the DHS Secretary Palm had clear statutory authority to issue an order aimed at controlling the spread of COVID-19.

“The majority reaches its conclusion by torturing the plain language of Wis. Stat. § 252.02 (2017-18), and completely disregarding the long-standing, broad statutory powers the Legislature itself granted to the Department of Health Services (DHS) to control COVID-19, a novel contagion,” she wrote.