This week, the Wisconsin Supreme Court sided with the Wisconsin legislature in ruling that Wisconsin’s Safer at Home Order, issued by the Department of Health Services (DHS) Secretary-designee, Andrea Palm, is unenforceable.  In doing so, the grounds it cited were that the order is an administrative “rule” that was not promulgated in accordance with Wisconsin’s Administrative Procedure Act; and it determined the order exceeds DHS’ statutory authority. The court declined to define the precise scope of DHS authority, instead determining that the Safer at Home Order was beyond the bounds of that authority.

As a result of the court’s decision, Wisconsin’s Safer at Home Order is immediately unenforceable except with regard to the closure of public and private K-12 schools for the remainder of the school year. As such, there are no state-wide restrictions that currently prevent these other Wisconsin businesses from reopening or operating at this time. However, every reopening business should proceed with caution and with advice of counsel prior to revising their operations during the continuing pandemic in order to avoid potential pitfalls relating to the transmission of the virus in their place of business.  In light of the ruling, certain local municipalities already have implemented their own stay-at-home orders.  While the state-wide order has been struck down, there remain significant public safety concerns, which have been acknowledged by the Wisconsin legislature and DHS, but the legislature has taken no action to address these concerns.

Governor Evers’ Emergency Declaration expired on May 11, 2020. The Wisconsin legislature has publicly supported a regional reopening approach based on COVID-19 case numbers in particular areas of the state, in which a more rapid reopening would be permitted for those parts of the state with low case numbers. If the Governor seeks to implement a new stay-at-home order through his emergency powers, he would need to declare another emergency, which the legislature may, by joint resolution, then choose to suspend.  If Governor Evers and DHS seek to issue any similar orders in the future, they will need to work directly with the legislature in promulgating an emergency or enacting legislation relating to reopening.

Notably, unlike other legal challenges to stay-at-home orders in Michigan, California, Kentucky and Illinois, the state executive’s authority regarding an emergency declaration or stay-at-home order was not at issue in the Wisconsin case.  This challenge arose related to DHS’ statutory authority and actions. None of the legal challenges in these other states have persuaded a court to fully strike down the quarantine order in those jurisdictions.

We anticipate the Wisconsin legislature, Governor Evers and DHS will issue new guidance or emergency rules approved by the legislature in the near future to create a roadmap for  the reopening of businesses and to allow people to circulate more freely.