May 13, 2020 – Washington Co., WI – Wisconsin’s highest court has ruled Department of Health and Human Services Secretary Andrea Palm exceeded her authority. The State Supreme Court issued a ruling that Palm took upon her more authority than the law allows by extending the governor’s stat-at-home order through May 26.
The court made its decision on a vote of 4 – 3. The three dissenting Justices include Justice Ann Walsh Bradley, Justice Rebecca Frank Dallet and Justice Brian Hagedorn.
It is unknown at this time if the order will be lifted right away, however the 6-day stay was struck down by the court.
State Sen. Duey Stroebel, (R-Cedarburg) said, “By ruling in favor of the State Legislature the Supreme Court has made clear that Governor Evers’s Secretary-designee has unlawfully exceeded her authority. With this decision in hand it is time to immediately reopen our state.”
“Regardless of state regulations, I have watched my neighbors and constituents exercise reasonable care and caution as they have gone about their lives. I believe we can fully reopen our state by relying upon the judgement and discretion of our citizens to navigate the challenges of COVID-19 while resuming our day-to-day lives. If it is necessary to set state-wide policies through the administrative rule process, I look forward to being a voice for targeted policies to protect our vulnerable population rather than the broad policies advanced by Governor Evers that have had disastrous consequences for so many Wisconsinites.”
Click HERE to read the State Supreme Courts 161-page decision. Portions of the decision are posted below.
¶1 PATIENCE DRAKE ROGGENSACK, C.J. This case is about the assertion of power by one unelected official, Andrea Palm, and her No. 2020AP765-OA 2 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,2 closing 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.
This is a story in progress and more information will be added when details become available.