Wisconsin Supreme Court rules that Stay Home Order, with arbitrary rules and decisions, violates the state Constitution

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. Palm says that failure to obey Order 28 subjects the transgressor to imprisonment for 30 days, a $250 fine or both. This case is not about Governor Tony Evers’ Emergency Order or the powers of the Governor.

¶2 Accordingly, we review the Wisconsin Legislature’s Emergency Petition for Original Action that asserts: (1) Palm as Secretary-designee of the Department of Health Services (DHS), broke the law when she issued Emergency Order 28 after failing to follow emergency rule procedures required under Wis. Stat. § 227.24 (2017-18),1 and (2) even if rulemaking were not required, Palm exceeded her authority by ordering everyone to stay home,

2closing all “non-essential” businesses,

3 prohibiting private gatherings of any number of people who are not part of a single household,

4 and forbidding all “non-essential” travel.

5 Palm responded that Emergency Order 28 is not a rule. Rather, it is an Order, fully authorized by the powers the Legislature assigned to DHS under Wis. Stat. § 252.02.

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 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.

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;
•   directedallstateagenciestoassistinrespondingtothe emergency;
•   proclaimed”thataperiodofabnormaleconomicdisruption” existed; and
•   directedtheDepartmentofAgriculture,Trade,andConsumer Protection to guard against price gauging during the emergency.

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.

• 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.”
•   Declaresall”publicamusementandactivity”placesclosed regardless of whether “indoors or outdoors” except golf courses (with restrictions). The order says “Driving ranges and miniature golf must remain closed.”
•   Continuestheorderedclosureofallsalonsandspas.
•   Continues the closure of every restaurant and bar except for take-out or delivery service.
•   Ordersreligiousgroupstolimitgatheringsto”fewerthan 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 ….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 ………The Court goes on to establish its jurisdiction. …..it then establishes the definition of rule vs. order.

The Supreme Court decision was: By the Court.—Palm’s Emergency Order 28 is declared unlawful, invalid, and unenforceable.
For the entire Court argument and decision click HERE