Bloomberg Law
May 14, 2020, 1:56 AM

Wisconsin Supreme Court Invalidates State’s Stay-at-Home Order

Stephen Joyce
Stephen Joyce
Staff Correspondent

A divided Wisconsin Supreme Court on Wednesday decided that an unelected state agency head’s emergency order shutting down the state because of the Covid-19 pandemic is not enforceable.

In a 4-3 decision, the court concluded that Executive Order 28 was actually a rule, and that Andrea Palm, Wisconsin’s Department of Health Services secretary designee, didn’t follow statutory rulemaking procedures when she issued the order. The order required the state’s population of nearly 6 million people to shelter in place and shut down non-essential businesses to help keep the coronavirus from spreading.

The ruling lifts the stay-at-home requirement and allows shuttered businesses to reopen immediately. Republicans, who control both chambers of the state Legislature, brought the lawsuit, and in a statement after the ruling said all Wisconsin businesses can reopen safely using guidelines developed by the Wisconsin Economic Development Corp., a government agency.

“We urge our fellow small business owners to utilize the suggestions as a safe and effective way to open up our state,” Assembly Speaker Robin Vos and state Senate Majority Leader Scott Fitzgerald said in a statement.

Wisconsin Gov. Tony Evers
Photographer: Daniel Acker/Bloomberg via Getty Images

Gov. Tony Evers (D) did not respond to a request for comment on the ruling.

Restricting Response

In her majority opinion, Chief Justice Patience D. Roggensack said the court didn’t conclude Palm was without any power to act during the pandemic. “However, Palm must follow the law that is applicable to statewide emergencies,” Roggensack wrote. “We further conclude that Palm’s order confining all people to their homes, forbidding travel, and closing businesses exceeded the statutory authority” Palm asserted when she issued the order.

State Assistant Attorney General Colin Roth had argued that Palm acted within her legal authority and has little time to consult with state lawmakers when dealing with a pandemic. She must have the flexibility to act quickly and decisively in a health emergency, Roth said.

Evers said last week that state law was on his administration’s side and he was confident he would win the case.

The case is Wisconsin Legislature v. Palm, Wis., No. 2020AP765-OA, opinion 5/13/20.

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