In a 4-3 decision, the Wisconsin Supreme Court has ruled Emergency Order #28, Safer at Home Order (Order #28) invalid and unenforceable for failure to follow the emergency rule promulgation process under Wisconsin Chapter 227. The court did not issue a stay of any kind, meaning that prohibitions on business operations or on individual travel no longer exist.

The court also stated Order #28 “goes far beyond” the Wisconsin Department of Health Services (DHS) Secretary Andrea Palm’s statutory authority under public health emergency statutes by confining people to their homes, forbidding travel and closing businesses.

The court made clear that Order #28 is a “rule” subject to important checks under state law. By publishing the order without going through the emergency rulemaking process, the Secretary evaded oversight and public input. The court noted that rulemaking exists precisely to ensure the controlling, subjective judgment of one unelected official is not imposed in Wisconsin. The court further criticized DHS’ attempt to apply criminal penalties to a rule that was not properly promulgated.

What happens next?

The court’s decision will have important implications for the process and substance of any future regulations issued to combat the 2019 novel coronavirus (COVID-19). New statewide regulations regarding COVID-19 will have to come from the Wisconsin State Legislature or through an administrative rulemaking procedure by DHS.

The court identified limitations on the authority of DHS, stating that the agency may not confine people to their homes, forbid travel or close businesses. Any future regulations to that effect must be passed by the legislature and signed into law.
People, businesses and other institutions need to know how to proceed and what is expected of them. As such, the court placed “the responsibility for this future law-making with the Legislature and DHS where it belongs.”

What about the Badger Bounce Back plan?

In effect, with the invalidation of Order #28, there is no longer anything to bounce back from. The state limitations imposed on businesses and citizens by Order #28 are no longer in effect. The court also criticized the Emergency Order #31, Badger Bounce Back for failing to follow the rulemaking process and being subject to the Secretary’s subjective criteria.

How should businesses respond?

While Order #28 is no longer enforceable, businesses should proceed cautiously and remain mindful of local public health orders or regulations that must be followed. Milwaukee Mayor Tom Barrett has stated the city’s Stay-at-Home Order remains in effect and Dane County has already issued its own local order adopting the provisions of Order #28 at the county level. Federal and state guidance may also limit businesses’ ability to open fully and safely without added precautions. 

Additional state regulations may be coming, but businesses will have to decide for themselves how to react as any future rules are developed.