Jeremy Ratliff
Editor
After over a week of hearing testimony and arguments from both sides, of the state legislature’s lawsuit vs state Department of Health Services (DHS) Secretary Designee Andrea Palm; Wednesday afternoon May 13, the state supreme court ruled (4-3) that Emergency Order 28-commonly known as the “Safer at Home Order”- is unenforceable.
As part of it’s decision, the court ruled the order did not follow statutory rulemaking procedures, as set forth by the state legislature:
” We conclude that Emergency Order 28 is a rule under the controlling precedent of this court, Citizens for Sensible Zoning, Inc. v. DNR, 90 Wis. 2d 804, 280 N.W.2d 702 (1979), and therefore is subject to statutory emergency rulemaking procedures established by the Legislature. Emergency Order 28 is a general order of general application within the meaning of Wis. Stat. § 227.01(13), which defines “Rule.” Accordingly, the rulemaking procedures of Wis. Stat. § 227.24 were required to be followed during the promulgation of Order 28. Because they were not, Emergency Order 28 is unenforceable.6 Furthermore, Wis. Stat. § 252.25 required that Emergency Order 28 be promulgated using the procedures established by the Legislature for rulemaking if criminal penalties were to follow, as we explain fully below.
Because Palm (Andrea Palm,Department of Health Services Secretary-designee) did not follow the law in creating Order 28, there can be no criminal penalties for violations of her order. The procedural requirements of Wis. Stat. ch. 227 must be followed because they safeguard all people.
¶4 We do not conclude that Palm was without any power to act in the face of this pandemic. However, Palm must follow the law that is applicable to state-wide emergencies. We further conclude that Palm’s order confining all people to their homes, forbidding travel and closing businesses exceeded the statutory authority of Wis. Stat. § 252.02 upon which Palm claims to rely.7
6 This decision does not apply to Section 4. a. of Emergency Order 28.
7 The Legislature’s petition included a third issue: “Even if the Department did not violate [Wis. Stat.] § 227.24, whether the Department acted arbitrarily and capriciously in issuing
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I. BACKGROUND
¶5 Although we do not address the Governor’s order, we note for purposes of background, that on March 12, 2020, Governor Evers issued Executive Order 72 “Declaring a Health Emergency in Response to the COVID-19 Coronavirus.” Order 72:
proclaimed that a public health emergency existed in Wisconsin;
designated DHS as the lead agency to respond to the emergency;
directed DHS to take “all necessary and appropriate measures to prevent and respond to incidents of COVID-19 in the State”;
suspended administrative rules that the DHS Secretary thought would interfere with the emergency response and increase the health threat;
authorized the Adjutant General to activate the National Guard to assist in responding to the emergency;
directed all state agencies to assist in responding to the emergency;
proclaimed “that a period of abnormal economic disruption” existed; and
directed the Department of Agriculture, Trade, and Consumer Protection to guard against price gauging during the emergency.
Emergency Order 28.” The court declined to take the third issue. Therefore, we do not address it.
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¶6 As further background we note that DHS Secretary designee, Andrea Palm, issued Emergency Order 12 on March 24, 2020, “under the authority of Wis. Stat. § 252.02(3) and (6) and all powers vested in [her] through Executive Order #72, and at the direction of Governor Tony Evers[.]” Palm’s Emergency Order 12 ordered “[a]ll individuals present within the State of Wisconsin . . . to stay at home or at their place of residence” with certain delineated exceptions. It remained in effect until April 24, 2020.
¶7 On April 16, 2020, Palm issued Emergency Order 28, also titled “Safer at Home Order.” This order was not issued by the Governor, nor did it rely on the Governor’s emergency declaration. Rather, it relied solely on “the authority vested in [Andrea Palm, Department of Health Services Secretary-designee] by the Laws of the State, including but not limited to [Wis. Stat. §] 252.02(3),
(4), and (6).” Emergency Order 28 commands all individuals in Wisconsin “to stay at home or at their place of residence” with certain limited exceptions approved by Palm or risk punishment “by
up to 30 days imprisonment, or up to $250 fine, or both.”8 Order 28 also:
Prohibits “[a]ll forms of travel” except what Palm deems essential.
Orders “[a]ll for-profit and non-profit businesses” to “cease all activities” except for minimum operations that Palm deemed basic.
8 Emergency Order 28, Section 18.
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Prohibits “[a]ll public and private gatherings of any number” “not part of a single household.”
Declares that all public and private K-12 schools “shall remain closed” for the remainder of the year.
Declares that libraries shall remain closed for “all in-person services.”
Declares all “public amusement and activity” places closed regardless of whether “indoors or outdoors” except golf courses (with restrictions). The order says “Driving ranges and miniature golf must remain closed.”
Continues the ordered closure of all salons and spas.
Continues the closure of every restaurant and bar except for take-out or delivery service.
Orders religious groups to limit gatherings to “fewer than 10 people in a room” including weddings and funerals.
Imposes a six-foot social distancing requirement for any person not “residing in a single living unit or household.”
Order 28 purports to remain in effect until May 26, 2020.
¶8 However, on April 20, 2020, Palm issued Emergency Order 31. It is not challenged directly in this action. In it, Palm established “Gating Criteria” that must be met in order to limit Emergency Order 28’s proscriptions.9 Order 31 has no end date and relies solely on Palm’s assertion of authority.
¶9 It is Order 28 that is being challenged in this original action. The Legislature filed an Emergency Petition for Original
9 Emergency Order 31, Section 2. b.
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Action on April 21, 2020. On the same date, we issued an order setting a briefing schedule that required a response from Palm by April 28, 2020, and a reply from the Legislature by April 30, 2020. We also allowed numerous amici motions and briefs to be filed by April 29, 2020.10 On May 1, 2020, we granted the Legislature’s Emergency Petition for Original Action and assumed jurisdiction over two issues: (1) whether Palm violated Wis. Stat. § 227.24, governing emergency rules, by issuing Emergency Order 28 without complying with § 227.24’s procedures, and (2) even if Palm did not violate § 227.24, whether Palm’s Order 28 exceeds her authority under Wis. Stat. § 252.02 by ordering all persons to stay at home, forbidding all “nonessential” travel and closing all “nonessential” businesses.”
Furthermore, court judges filed individual opinions raising concern over additional claims filed as part of the legislature’s court petition.
For the complete court ruling and subsequent opinions, click here.