The Wisconsin Supreme Court last week struck down the extension of the state Department of Health Services Safer at Home Emergency Order 28 that would have kept closed and severely restricted many businesses and public activities through the Memorial Day weekend.

The court ruled 4-3, Wednesday, May 13, in a case brought forth by the Republican-led legislature that sought to block the extension ordered by Wisconsin Health Secretary Andrea Palm. The decision struck down Palm’s order immediately, denying the legislature’s request for a 6-day stay based on concern over confusion that might result if the order is declared invalid and actions to enforce the declaration immediately commence as people, businesses and other institutions may not know how to proceed or what is expected of them.

Within hours, businesses were open.

Evers first directed Palm to issue a Safer-at-Home order in March. It was supposed to expire April 24 but Palm issued Order 28 that extended it to May 26. The case was brought against executives in the Wisconsin Department of Health Services.

By Monday, May 18, the coronavirus has sickened 12,543 in the state and more than 1.47 million nationally and killed 453 in the state and more than 88,700 nationally.

In its suit, the legislature said Palm exceeded her authority by issuing Order 28 that orders everyone to stay home, closing all “non-essential” businesses, prohibiting private gatherings of any number of people who are not part of a single household and forbidding all “non-essential” travel.

The court concluded the order is instead a rule and therefore subject to statutory rulemaking procedures established by the legislature. Because rulemaking procedures were not followed, Palm’s order is unenforceable. Also, because Palm did not follow the law in creating Order 28, there can be no criminal penalties for violations of her order.

“We further conclude that Palm’s order confining all people to their homes, forbidding travel and closing businesses exceeded the statutory authority of [Wisconsin Statutes] upon which Palm claims to rely. Palm’s Emergency Order 28 is declared unlawful, invalid, and unenforceable,” the State Supreme Court concluded.

“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,” the court said it its ruling. “We further conclude that Palm’s order confining all people to their homes, forbidding travel and closing businesses exceeded the statutory authority … upon which Palm claims to rely.”

The crux of the Legislature’s claims is that Emergency Order 28 was put into effect without following required statutory procedures applicable to an emergency, and in so doing, Palm impinged upon the Legislature’s constitutional core power and its function under state law.

Writing the opinion for the majority, State Supreme Court Chief Justice Patience Roggensack cited the Legislature’s 6-day injunction request.

“I too am appreciative of the concerns raised by COVID-19 and the possibility of throwing the state into chaos. Accordingly, although our declaration of rights is effective immediately, I would stay future actions to enforce our decision 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,” Roggensack said.

In a dissenting opinion, Justice Ann Walsh Bradley wrote there appears nothing in place to fill the void rendered by the state’s high court’s majority decision.

“The lack of a stay would be particularly breathtaking given the testimony yesterday before Congress by one of our nation’s top infectious disease experts, Dr. Anthony Fauci. He warned against lifting too quickly stay-at-home orders such as embodied in Emergency Order 28. He cautioned that if the country reopens too soon, it will result in ‘some suffering and death that could be avoided [and] could even set you back on the road to trying to get economic recovery,’” Bradley wrote. “Given the admonition of Dr. Fauci, I fail to see the wisdom or the equity in invalidating Emergency Order 28 and, at least for the time being, leaving nothing in its stead.”

Justice Brian Hagdorn, a conservative justice on the bench, joined the minority opinion questioning if any harm has been done to the legislature and if the court can grant any relief.

In his dissenting opinion he wrote, “We are facing a unique public health crisis the likes of which few among us has ever seen. And the government response of shutting down businesses, travel, and schools, forbidding private gatherings, and other such measures is a demonstration of government power the likes of which few among us has ever seen.”

“Order 28 is a general order by virtue of having statewide effect, but it is not one of general application. It is a temporary order issued to address the outbreak of a particular communicable disease. Therefore, it does not meet the definition of a rule under [Wisconsin Statute],” Hagedorn wrote.

“Executive branch overreach may be challenged by those who are harmed by the executive branch action. Except in unusual cases, the lawmaking body is not injured in its lawmaking functions by executive branch enforcement gone awry. Therefore, the legislature lacks standing to bring this claim, and it should be dismissed,” Hagedorn said.

While the state-wide order is no longer in effect, local health departments may still institute restrictions.

The Rusk County Health Department issued a statement the day after the state Supreme Court decision calling the last two months an extraordinary period of time and thanking community residents and partners.

“Subsequent to the Wisconsin Supreme Court ruling regarding the Safer at Home Order, the Rusk County Health Department is working with state and local officials as well as other regional partners to determine the next steps. The health and safety of all community members is our highest priority, and keeping the community safe is what we are highly trained to do,” Rusk County Public Health Officer Dawn Brost said. “In order to prevent the spread of COVID-19, the health department asks that community members voluntarily follow the same guidance that has already been shared until further notice.”

The county health department is only offering guidance related to the COVID-19 pandemic, but it is not issuing any orders at this time.

“We acknowledge that this situation is ever changing and may require future orders to control the transmission of the virus throughout our community,” Brost said.

Department officials will monitor the situation, she added

“As always, the health and safety of all residents in Rusk County is our highest priority so please remember the order is gone, the virus is not,” Brost stated.

In a statement, Evers said the Supreme Court of Wisconsin’s ruling puts the health and safety of state residents at risk by ending the Safer at Home order, effective immediately, and requires the Wisconsin Department of Health Services to go through the rulemaking process to be able to respond to an epidemic. 

“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,” Evers said. “Despite that good work, Republican legislators have convinced 4 justices to throw our state into chaos.”

Evers asked the public to voluntarily follow the restrictions in the order struck down by the courts including continuing to stay safer at home, practice social distancing, and limit travel.

“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,” Evers said.

Last Thursday, Evers approved a statement of scope developed by the Wisconsin Department of Health Services beginning the administrative rule making process to enact protections for Wisconsinites during the COVID-19 pandemic. It seeks to maintain appropriate social distancing or other measures to slow and contain the spread of COVID-19 and protect health and safety, while turning the dial to reopen Wisconsin’s economy.

Wisconsin Assembly Rep. Jim Edming said his office is not aware of any of any local restrictions issued within his district. He encouraged business owners who choose to reopen, to review and follow guidelines from the Wisconsin Economic Development Corporation and Center for Disease Control and local health department.

With the court’s ruling, any regulations that Governor Evers or DHS wishes to put in place must go through the emergency rulemaking process that is outlined in state law which allows for oversight by the legislature through the Joint Committee for Review of Administrative Rules, according to Edming.

“Earlier this week, DHS issued a scope statement which is the first step in the rulemaking process and I look forward to it including input from the citizens of Wisconsin and their elected representatives,” Edming said.

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