On May 13, 2020, the Wisconsin Supreme Court struck down the State’s second Safer At Home Order, Emergency Order #28, which was issued on April 16, 2020, by the Department of Health Services Secretary-designee, Andrea Palm.1 As explained later in the article, the first Safer At Home order (Emergency Order #12) was originally issued on March 24, but was extended and modified by a new order on April 16.
In a 4-3 decision, the conservative jurists on the bench, led by Chief Justice Patience Drake Roggensack, held that “Palm’s Emergency Order #28 was unlawful, invalid, and unenforceable.”2 One reason, the court concluded, was that because Palm exceeded the statutory authority delegated to her by the legislative branch in Wis. Stat. 252.02 when she promulgated Emergency Order #28.3
Yet, it is clear that Palm’s actions were not taken strictly in accordance with the duties she believed granted to her by the Wisconsin Legislature. Palm also acted, at least in part, per a direct order issued by the State’s Chief Executive Officer two months prior.
On March 12, 2020, Gov. Tony Evers issued Executive Order #72, declaring a public health emergency in Wisconsin.4 This Executive Order, like others issued across the country in recent months, designated one of its agencies—the Department of Health Services—“as the lead agency to respond to the public health emergency.”5 It specifically directed “the Department of Health Services to take all necessary and appropriate measures to prevent and respond to incidents of COVID-19 in the State.”6 Importantly, it also “suspend[ed] the provisions of any administrative rule, if the Secretary determined that compliance with that rule would prevent, hinder, or delay necessary actions to respond to the emergency and increase the health threat.”7
Relying on the Governor’s Executive Order, Palm issued Emergency Order #12 on March 24, ordering all persons within the state to stay at home until April 24, 2020.8 Palm’s Safer At Home Order was issued “under the authority of Wis. Stat. §252.02(3) and (6),9 all powers vested in [her] through Executive Order #72, and at the direction of Governor Tony Evers[.]”10 The legislature did not challenge this order.
Then, on April 16, Palm issued a second Safer At Home Order, designated under Emergency Order #28.11 This 21-page order, among other things, again commanded all individuals within the state of Wisconsin to stay at home or at their place of residence” and placed serious restrictions on most “nonessential” businesses until May 26.12 This time, however, Palm criminalized the order.13 She added that any violation of the order would be “punishable by up to 30 days imprisonment, or up to $250 fine, or both,” citing Wis. Stat. § 252.25.14 This is the order at issue in the lawsuit.
This new enforcement provision was not the only difference between the two orders observed by the Wisconsin Supreme Court. Indeed, the other notable difference between Emergency Order #12 and Emergency Order #28 was that the latter “was not issued by the Governor, nor did it rely on the Governor’s emergency declaration.”15 Rather, according to the plain language in Emergency Order #28, Palm relied solely on “the authority vested in [her] by the Laws of the State, including but not limited to Section 252.02(3), (4), and (6) of the Wisconsin Statutes.”16 This time, she did not include “all powers vested in [her] through Executive Order #72, and at the direction of Governor Tony Evers[.]”
While it is unknown whether that omission was intentional or not, that distinction seemed crucial to the majority—or at least to the Chief Justice, who repeatedly distanced the opinion as a challenge to the Governor’s authority. “This case is not about Governor Tony Evers’ Emergency Order or the powers of the Governor.”17 “This case is about the assertion of power by one unelected official, Andrea Palm, and her order to all people within Wisconsin to remain in their homes, not to travel and to close all businesses that she declares are not ‘essential’ in Emergency Order #28.”18
The question remains: had Palm included that delegation of power language in Emergency Order #28 as she did in Emergency Order #12, would the legislature still have challenged the order? Or was it the fact she went one step further and made it a crime for citizens to leave their homes for “nonessential” reasons that finally triggered the legislature to react?
Either way, Justices Rebecca Dallet and Brian Hagedorn agreed that Palm had the authority to do what she did.19 Each included dissenting opinions that Palm’s “assertion of power” was expressly granted to her by the same group of persons who now wanted to reign her in.20
The dissenting judges noted “Section 252.02(4) plainly grants DHS the power to address COVID-19 through rulemaking or by issuing orders. The use of the ‘or’ distinguishes ‘orders’ from ‘rules.’ Which alternative DHS chooses, order to rule, it can be made ‘applicable to the whole’ of Wisconsin. The Legislature chose these words and is presumed to say what it means and mean what it says.”21
They further reasoned that if the legislative branch wanted to minimize the Department of Health Services’ authority to control people during a pandemic, it should do so through the legislative process, and not through a judicial one.22
Regardless, in the end, four of the seven justices agreed that Emergency Order 28 went too far, and as such, the stay-at-home order was lifted. For Democrat Gov. Evers, it was “a bad day for Wisconsin.”23 For local business owners, it was a cause to celebrate. The Tavern League of Wisconsin (the nonprofit trade association for bar owners) almost immediately let its members know they could reopen for business.24
Yet, not all restaurant and bar owners were so lucky. Local officials in Brown, Dane, and Milwaukee counties reacted by imposing stay-at-home orders similar to the one issued by Palm.25 “But, many of the state’s seventy-two counties chose not to do so,” and in those areas, businesses are free to operate as they see fit.26
As for other states around the country, the window of opportunity to challenge their respective stay-at-home orders may have passed, given that states are slowly starting to reopen. However, if the unfortunate happens, and we see a second wave of COVID-19 cases, governors may want to refrain from delegating rulemaking powers to a non-elected official in their state. Or, better yet, perhaps both the executive and the legislative branches should start communicating now and reach an agreement on how to handle a public health crisis should this ever happen again.
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1Wisconsin Legislature v. Palm, 2020 WI 42.
2Id. at ¶ 59.
3Id. at ¶¶ 43-55, 59. “For example, Order #28 exceeds the § 252.02(4) authority to quarantine those infected or suspected of being infected. Instead, Palm quarantines ‘[a]ll individuals present within the State of Wisconsin’ by ordering them ‘to stay at home or at their place of residence’ with exceptions she deems appropriate.” Id. at ¶ 49.
4Wis. Governor’s Office, Executive Order #72: Relating to a Proclamation Declaring a Health Emergency in Response to the COVID-19 Coronavirus (2020).
5Id. The Ohio Department of Health Director issued the state’s stay-at-home order on March 22, 2020, pursuant to state statute. The stay-at-home orders in Indiana, Illinois and Minnesota were all issued by their respective governors. OH. Dep’t of Health Serv., Director’s Stay at Home Order (2020); IN. Governor’s Office, Executive Order #20-08: Directive for Hoosiers to Stay Home (2020); IL. Governor’s Office, Executive Order in Response to COVID-19 (COVID-19 Executive Order No. 8) (2020); MN. Governor’s Office, Emergency Executive Order 20-20: Directing Minnesotans to Stay at Home (2020).
6Wis. Governor’s Office, Executive Order #72: Relating to a Proclamation Declaring a Health Emergency in Response to the COVID-19 Coronavirus (2020).
8Wis. Dep’t of Health Serv., Emergency Order #12: Safer at Home Order (2020).
9Wisconsin Statute §252.02(6) allows “[t]he department to authorize and implement all emergency measures necessary to control communicable diseases.”
10Wis. Dep’t of Health Serv., Emergency Order #12: Safer at Home Order (2020).
11Wis. Dep’t of Health Serv., Emergency Order #28: Safer at Home Order (2020).
14Id. Section 252.25 provides that, “Any person who willfully violates or obstructed the execution of any state statute or rule, county, city or village ordinance or departmental order under this chapter and relating to the public health, for which no other penalty is prescribed, shall be imprisoned for not more than 30 days or fined not more than $500 or both.”
15Wisconsin Legislature v. Palm, 2020 WI 42, ¶ 7.
16Id.; see also Wis. Dep’t of Health Serv., Emergency Order #28: Safer at Home Order (2020).
17Wisconsin Legislature v. Palm, 2020 WI 42, ¶ 1; see also Wisconsin Legislature v. Palm, 2020 WI 42, ¶ 41 (“As we said at the beginning of this decision, the Governor’s emergency powers are not challenged by the Legislature, and Palm does not rely on the Governor’s emergency powers. Constitutional law has generally permitted the Governor to respond to emergencies without the need for legislative approval.”)
18Wisconsin Legislature v. Palm, 2020 WI 42, ¶ 1.
19Id. at ¶¶ 132-264.
21Id. at ¶ 140 (emphasis in original). Justice Rebecca Dallet also wrote that “[t]his decision willl undoubtedly go down as one of the most blatant examples of judicial activism in this court’s history. And it will be Wisconsinites who pay the price.”
22Id. at ¶ 133 (“While a majority of this court is clearly uncomfortable with the broad grants of authority the Legislature gave to DHS through Wis. Stat. § 252.02 and throughout Wisconsin history, the court’s role is only to examine and apply the plain statutory language”); id. at ¶ 170 (“The legislature may have buyer’s remorse for the breadth of discretion it gave to DHS in Wis. Stat. § 252.02. But, those are the laws it drafted; we must read them faithfully whether we like them or not.”)
23Omar Jimenez and Paul LeBlanc, Wisconsin Supreme Court strikes down state’s stay-at-home order, CNN Politics (May 14, 2020).
24Caitin O’Kane, Wisconsin bars packed with patrons almost immediately after court strikes down stay-at-home order, CBS News (May 15, 2020).
25Adam Gabbatt, Wisconsin: drinkers return to bars after judges strike down stay-at-home order, The Guardian (May 15, 2020).