Wednesday, May 13, 2020

"Wisconsin Supreme Court Strikes Down Stay at Home Order" as Violating State Rulemaking Procedures

By Eugene Volokh - May 13, 2020 at 07:06PM

Read the Wisconsin State Journal (Riley Vetterkind) article, or the 4-3 decision in Wisconsin Legislature v. Palm (161 pages!). The opening paragraphs of the majority opinion:

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.

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 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.

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.

And from Justice Dallet's dissent:

Today, a majority of this court does the Legislature's bidding by striking the entirety of Emergency Order 28, "Safer at Home Order" …. The majority reaches its conclusion by torturing the plain language of Wis. Stat. § 252.02 and completely disregarding the longstanding, broad statutory powers the Legislature itself granted to the Department of Health Services (DHS) to control COVID-19, a novel contagion. This decision will 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….


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