Supreme Court: Safer at Home Order unenforceable
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 its 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, 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. 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 high court’s ruling stated.
“The procedural requirements of Wis. Stat. ch. 227 must be followed because they safeguard all people. 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.”
Following the ruling, Governor Tony Evers issued the following statement, in response to the ruling.
“Up until now, Wisconsin was in a pretty good place in our battle against COVID-19. We had reached almost all our gating criteria. We had opened up 14,000 small businesses across the state, putting 90,000 folks back to work, and that was because of the good work of Wisconsinites across our state who banded together, stayed home, and stayed safe,” said Gov. Evers. “Despite that good work, Republican legislators have convinced four justices to throw our state into chaos.
“We cannot let today’s ruling undo all the work we have done and all the sacrifices Wisconsinites have made over these past few months. We need everyone to continue doing their part to keep our families, our neighbors, and our communities safe by continuing to stay safer at home, practice social distancing, and limit travel, because folks; deadly viruses don’t wait around for politicians and bureaucrats to settle their differences or promulgate rules.
“This virus has killed more than 400 of our family members, friends, and neighbors and thousands more across our state are sick. I am disappointed in the decision today, but our top priority has been and will remain doing what we can and what we have to do to protect the health and safety of the people of our state. After months of unproductive posturing, I hope the folks in the legislature are ready to do the same.”