On May 13, 2020, In Wisconsin Legislature v. Palm, the Wisconsin Supreme Court invalidated Emergency Order #28 (“EMO #28”), the “safer at home” order issued by Department of Health Services (DHS) Secretary-Designee Palm on April 16, 2020, except with respect to school closures.
The Evers Administration has taken numerous actions in response to the COVID-19 outbreak. Most relevant to the court decision, DHS issued EMO #28, which replaced a previous “safer at home” order and expires at 8:00 a.m. on May 26, 2020. As partially revised by additional DHS orders, and with numerous exceptions, EMO #28 generally requires all individuals within the State of Wisconsin to stay at home or at their place of residence and directs all “non-essential” nonprofit and for-profit businesses to cease operations at facilities located in Wisconsin.
DHS relied on s. 252.02 (3), (4), and (6), Stats., to issue EMO #28. Together with other statutory authority relating to the control of communicable diseases, those provisions authorize DHS to: close schools and forbid public gatherings in schools, churches, and other places to control outbreaks and epidemics; promulgate rules and issue orders for guarding against the introduction of any communicable disease into the state and for the control and suppression of communicable diseases; and authorize and implement all emergency measures necessary to control communicable diseases. Both the statutes and the order specify criminal penalties for violating the order.
It is important to note that in issuing its decision, the Wisconsin Supreme Court analyzed a particular order issued by the Wisconsin Health Services. Therefore, the decision does not apply to the federal government, New Jersey, or any other states. The decision is also not particularly persuasive in New Jersey, given that .as of May 13, 2020, all of the other legal challenges to “stay at home” orders from other states were unsuccessful. One such failed challenge occurred in the Michigan Court of Claims on April 29. Similar challenges in California, Kentucky, and Illinois have all failed to invalidate state orders.
The 4-3 Wisconsin Supreme court majority noted in relevant part that state agencies promulgate administrative rules pursuant to rulemaking authority conferred by the Legislature, subject to legislative oversight and promulgation procedures under ch. 227, Stats. For purposes of ch. 227, Stats., “rule” is defined, in pertinent part, to include a “general order of general application that has the force of law.” The process to promulgate a permanent rule provides opportunities for public participation and legislative and gubernatorial review at multiple stages, resulting in timelines that often stretch beyond a year from publication of a “scope statement” until a rule takes effect. However, an agency may adopt a temporary “emergency rule,” if the agency determines that the preservation of public peace, health, safety, or welfare necessitates doing so. The emergency rulemaking process is set forth in s. 227.24, Stats. When a new scope statement is required, the emergency rulemaking process takes a minimum of approximately two weeks from submission of the scope statement until an emergency rule takes effect.
On April 21, 2020, the Legislature filed an emergency petition requesting that the Wisconsin Supreme Court exercise its original jurisdiction to consider questions relating to DHS’s authority to issue EMO #28. On May 1, 2020, the Wisconsin Supreme Court granted the Legislature’s emergency petition for original action to consider the following two questions: Whether DHS violated s. 227.24, Stats., governing emergency rules, by issuing EMO #28 without complying with s. 227.24’s procedures.
Even if DHS did not violate s. 227.24, Stats., whether EMO #28 exceeds the department’s authority by closing all “nonessential” businesses, ordering all Wisconsin persons to stay at home, and forbidding all “nonessential” travel. The Court held oral arguments in the case on May 5, 2020. In its briefs and oral argument, the Legislature argued, in part, that orders issued under s. 252.02, Stats., fall within the definition of a “rule” for purposes of ch. 227, Stats., and are therefore subject to rulemaking procedures and legislative oversight under that chapter.
Here again, the majority is analyzing statutes that speak to the procedures for emergency rule-making that are unique to the State of Wisconsin. Therefore, they are not controlling on any other State nor are they particularly persuasive. It is interesting that the “emergency” rule-making procedure still takes at least two weeks for a rule to pass. While it is significantly shorter than the regular rule-making timelines that typically take a year or more, a two-week process does not seem to be consistent with a true “emergency” rule.
The majority of the Court held that Because DHS did not promulgate EMO #28 as a rule, the Legislature requested the Court to enjoin (stop enforcement of) the order, but with a short delay to allow DHS to pursue emergency rulemaking. The Legislature conceded that it likely lacks the legal standing to challenge the order on some constitutional grounds. In its response and oral argument, DHS argued, in part, that EMO #28 is authorized by the broad grant of authority under s. 252.02 (3), (4), and (6), Stats., to control communicable diseases. DHS also argued that a time-limited emergency order is not a “general order of general application” for purposes of the ch. 227 definition of “rule,” because it is limited by both time and context – i.e., it is limited to responses necessary to control communicable disease, and because interpreting the order to be a “rule” would render references to “orders” in ch. 252, Stats., superfluous.
The majority’s decision invalidates EMO #28 effective immediately, except with respect to the provision of the order that closes schools. The majority opinion by Chief Justice Roggensack, joined by Justices Ziegler, Grassl Bradley, and Kelly, announced that EMO #28 is a “rule” for purposes of ch. 227, Stats., and thus is invalid because it was not promulgated under the rulemaking procedures under that chapter.3 Noting that EMO #28 applies to “all persons in Wisconsin,” the Court concluded that the order is a “general order of general application” for purposes of the ch. 227 definition of “rule,” and is not one of the types of agency actions specifically exempted from that definition. The court also emphasized that subjecting DHS’s statutory authority to legislative oversight and rulemaking procedures avoids “serious constitutional questions” that might otherwise arise, in part because the order imposes criminal penalties.
The provision of criminal penalties is also part of Governor Murphy’s “stay at home” orders in New Jersey. It is a little known “disorderly persons offense”, punishable by a maximum of six months in jail and/or a $1,000 fine, to violate an executive order. The common understanding of this rare offense is that it only applies to “hosts” of social gatherings in violation of the “stay at home” order. On April 13, 2020, State Senator Vin Gopal, introduced pending legislation that would apply the criminal penalties to all violators of the order.
The Wisconsin Supreme Court majority held that it “cannot expansively read statutes with imprecise terminology that purport to delegate lawmaking authority to an administrative agency,” and emphasized the breadth of EMO #28’s prohibitions to hold that the order exceeds DHS’s statutory authority. In doing so, the Court relied in part on a provision enacted in the 2011 Legislative Session, which prohibits agencies from implementing or enforcing standards that are not explicitly required or permitted by statute or rule. Three concurring opinions and three dissenting opinions were also filed. In separate concurring opinions, Chief Justice Roggensack stated that she would stay delay the opinion’s effect until May 20, 2020; Justice Grassl Bradley raised concerns relating to abuse of power, separation of powers, and individual liberty; and Justice Kelly emphasized considerations under the separation of powers and nondelegation doctrines.
Dissenting opinions by Justice Hagedorn and Justice Dallet disagree with the majority on the questions of statutory interpretation. In her dissenting opinion, Justice Dallet concluded that DHS has the authority to issue general orders not subject to ch. 227, Stats., while Justice Hagedorn concluded that ch. 227, Stats., does not apply because DHS orders lack prospective application after the COVID-19 outbreak and, thus, are not of general application. Justice Walsh Bradley also filed a dissenting opinion to note that the chief justice’s concurring opinion may create confusion regarding the effective date of the decision and to express concerns about the public health risks of an immediately effective decision.
The Chief Justice’s concurring opinion would have allowed the Governor of Wisconsin to save face. If, in the wake of the opinion, he decided to not extend the “stay at home” order passed May 20, the Wisconsin Supreme Court’s opinion would have been mooted. The dissenting opinion from Justice Hagedorn with regard to the Governor’s order being constitutional because it did not extend beyond the time period of the COVID outbreak appears insincere. By most accounts, new cases of the disease will continue to surface for up to two years from now.