North America: COVID-19 - The Reopening Playbook: Wisconsin's High Court strikes Safer at Home Order

In brief

In a four-three decision, the Wisconsin Supreme Court ruled on 13 May 2020, that Wisconsin's Safer at Home Order was "unlawful, invalid, and unenforceable."1 The ruling addressed a petition filed by the Wisconsin Legislature, seeking a declaration that the Order was invalid because it was issued without adherence to statutory rulemaking requirements and exceeded statutorily-granted authority for issuing emergency orders. Although a number of suits have been filed throughout the country challenging the validity of emergency orders issued in response to the COVID-19 pandemic, the Wisconsin ruling was the first by the highest court of any state addressing 'stay at home' orders.



The Wisconsin Department of Health Services (DHS) is an agency of the executive branch of Wisconsin government. It is tasked with protecting and promoting the health and safety of the people of Wisconsin. The Secretary of DHS is not an elected official, but is appointed by the governor.

On 24 March 2020, Andrea Palm, Secretary-designee of the Wisconsin Department of Health Services (DHS), acting at the direction of Wisconsin Governor Tony Evers, issued Emergency Order #12. Titled "Safer at Home," the order required all persons "present within the State of Wisconsin . . . to stay at home or at their place of residence." This general quarantine provision was subject to a number of exceptions for activities, governmental functions, businesses and operations and travel defined under the Order as 'essential.' Violations of the Order were punishable by up to thirty days' imprisonment, a fine not to exceed USD 250, or both.2

EO #12 became effective on 25 March 2020, and was to remain in effect until 24 April 2020, unless replaced with a superseding order.

On 16 April 2020, DHS Secretary-designee Palm promulgated EO #28. In large measure, EO #28 was simply an extension of EO #12. Effective from 24 April until 26 May 2020, the new Order continued the stay-at-home provisions of EO #12, subject to many of the same exceptions included in the earlier order. Violations of EO #28 were subject to the same enforcement provisions contained in the original Order. The new Order departed from its predecessor in one crucial, and ultimately fatal, respect: while Ms. Palm cited Governor Evers' 'direction' as the source of her authority to issue the EO #12, she relied on the "authority vested in me by the Laws of the State," without any reference to direction from Governor Evers, to issue EO #28.3

On 21 April 2020, the Wisconsin legislature filed a petition with the Wisconsin Supreme Court challenging the validity of the Safer at Home Order embodied in EO #28. The Court heard oral argument on 5 May 2020. Before the Court issued its decision, the Legislature sought an injunction but then requested the Court to stay any injunction for six days. At oral argument, the Legislature suggested that a longer stay might be appropriate to provide time for the parties to discuss transition to a new order, if the Court were to enjoin Order 28. The Court issued its decision, invalidating EO #28, despite this request.

What the Court did not address

It would be a mistake to read this case as limiting the authority of Wisconsin's governor to issue emergency orders in the face of a pandemic. The Court's ruling invalidated EO #28; it did not even address the validity of EO #12. Contrary to published reports, the Court did not decide that Governor Evers lacked authority to issue the initial emergency order in response to the pandemic. Early in its opinion, the Court emphasized that "[t]his case is not about Governor Tony Evers' Emergency Order or the powers of the Governor." Indeed, Governor Evers' authority to either issue EO #12 himself or to direct Ms. Palm to issue that Order was not challenged. The dispute centered entirely on the authority of DHS Secretary-designee Palm to issue EO #28. As the Court noted, "the Governor's emergency powers are not challenged by the Legislature . . . Constitutional law has generally permitted the Governor to respond to emergencies without the need for legislative approval."

The second Order, EO #28, failed to recite that it was being issued at the direction of Governor Evers, which begs the question: why, then, did Secretary-designee Palm not simply include a statement in Order #28 that she was acting at the direction of the Governor (who undoubtedly reviewed and approved the Order)? While the Court's opinion does not clearly enunciate the reason (and a reason was not required, given the scope of its review), the reason may be related to concerns over Governor Evers' ongoing authority to address the pandemic through emergency orders. To be sure, Governor Evers had the authority to issue EO #12, as the Court emphasized: "Constitutional law has generally permitted the Governor to respond to emergencies without the need for legislative approval." But that authority is grounded in the need for immediate action created by the emergency and the potential harm likely to result from the delay caused by pursuing appropriate measures through the normal legislative process. As such, the Governor's emergency power has a limited shelf life, as the Court noted: "The Governor could declare an emergency and respond accordingly. But in the case of a pandemic, which lasts month after month, the Governor cannot rely on emergency powers indefinitely."  The Wisconsin legislature, on the other hand, has granted DHS separate authority to "authorize and implement all emergency measures necessary to control communicable diseases." Governor Evers may have viewed this separate grant of authority as a 'cleaner' way of addressing Wisconsin's response to the pandemic and avoiding issues of whether he had the ongoing authority to issue emergency orders. However, as discussed below, the authority vested in DHS to implement measures to control communicable diseases is not unqualified, and the failure to observe rulemaking requirements and the broad scope of EO #28 resulted in the Order's demise.

Issues addressed by the Court

The Court first had to determine whether it had jurisdiction to decide the dispute. Given the significance and time-sensitive nature of its petition, the Wisconsin Legislature sought to invoke the original jurisdiction of Wisconsin's high court. Noting that the Order before the Court "impacts every person in Wisconsin, as well as persons who come into Wisconsin, and every 'non-essential' business," the Court agreed that "[e]xercising original jurisdiction is appropriate in this dispute."

The Court then identified two issues arising under Wisconsin statutory law that it would address:

  1. Whether Palm violated Wis. Stat. § 227.24, governing emergency rules, by issuing Emergency Order 28 without complying with § 227.24's procedures.
  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.4

The Court decided both issues in favor of the Petitioner and invalidated EO #28.

Resolution of issue 1

Wisconsin law permits an agency to issue emergency rules, provided specifically-identified rulemaking procedures are observed.  Wis. Stats. § 227.24. Ms. Palm did not comply with the statutory rulemaking procedures, but argued that Wis. Stats. § 227.24 did not apply to her issuance of EO #28, because the Order was not a 'Rule' as defined in the statute.

In relevant part, Wis. Stats. § 227.01(13) defines Rule as "a regulation, standard, statement of policy or general order of general application that has the force of law and that is issued by an agency to implement, interpret, or make specific legislation enforced or administered by the agency or to govern the organization or procedure of the agency." The Court's analysis of this definition and its application to EO #28 focused on whether the Order was a "general order of general application."

Conceding that her Order was 'general,' Ms. Palm argued that EO #28 was not of "general application ... because it responds only to a specific, limited-in-time scenario." The Court rejected this argument. Relying on Wisconsin appellate precedent, the Court noted that in resolving the question of "general application . . . the focus was on the people regulated, not on the factual context in which the regulation arose." The Court concluded that EO #28 was a Rule within the meaning of Wis. Stats. § 227.01(13) because it "regulates all persons in Wisconsin at the time it was issued and it regulates all who will come into Wisconsin in the future."

The Court fortified its conclusion that EO #28 was a Rule by noting that the Order criminalized violations. "It has long been the law in Wisconsin that in order for the violation of an administrative agency's directive to constitute a crime, the directive must have been properly promulgated as a rule."

Having concluded that EO #28 was a 'Rule' within the statute's definition, the Court ruled that the Order was invalid and unenforceable because it was issued without complying with the rulemaking requirements of Wis. Stats. § 227.24.

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1 Wisconsin Legislature v. Palm, Case No. 2020AP765-OA (Wis. Sp. Ct., 13 May 2020).

2 The full text of EO #12 can be found here.

3 The full text of EO #28 can be found here.

4 The Court declined to address a third issue raised by Petitioner: "Even if the Department did not violate [Wis. Stat.] § 227.24, whether the Department acted arbitrarily and capriciously in issuing Emergency Order 28."

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