Wisconsin Supreme Court Strikes Down State Stay-at-Home Order

The Wisconsin Supreme Court recently struck down the state’s stay-at-home order that, among other things, forced businesses deemed “non-essential” to close. In the opinion, the court ruled that the order, which was in the form of a rule issued by the Secretary of the State Department of Health, failed to follow the proper, legislatively prescribed process for promulgating emergency rules.

The decision is the first time the highest court in a state has pushed back against what some argue are unconstitutional tactics employed in response to COVID-19. Yet, in Wisconsin, the court based its decision less on the state constitution and more on statutory interpretation.

Wisconsin’s Secretary of the Department of Health, which is an unelected position, issued Emergency Order 28, which she entitled “Safer at Home.” Similar to orders issued in other states, the Safer at Home Order prohibited all forms of travel, except for essential services, ordered all non-essential businesses to “cease all activities,” prohibited public gatherings and more.

The Wisconsin Legislature challenged the Safer at Home Order but not Governor Evers’ Declaration of Emergency. In its petition, the Legislature asked the Wisconsin Supreme Court to decide if the Secretary “broke the law when she issued [the ‘Safer at Home’] order after failing to follow emergency rule procedures” required by law.

The Legislature argued that the order was, according to statute, a “rule,” while the Secretary argued that the order was not a rule. Applying a precedent from 1979, the court sided with the Legislature because “the class” to which it applied was “described in general terms and new members [could] be added.”

According to the court, the Secretary’s emergency order usurped the authority of the Legislature. The purpose for vesting emergency power in the governor is to provide the ability “to respond to emergencies without the need for legislative approval… [T]he Governor’s emergency powers are premised on the inability to secure legislative approval given the nature of the emergency.”

A pandemic, though, differs substantially from other types of emergencies, as recognized by the court. “For example, if a forest fire breaks out, there is no time for debate. Action is needed… But in the case of a pandemic, which lasts month after month, the Governor cannot rely on emergency powers indefinitely.” Concluding that the Secretary must follow rulemaking procedures (yet failed to do so), the court opined that the process “exists precisely to ensure that kind of controlling, subjective judgment asserted by one unelected official… is not imposed in Wisconsin.”

The Legislature also requires agencies to jump through additional hoops if an emergency rule imposes criminal sanctions upon violations. As is the case with many other, similar orders, the Secretary tried to attach statutory criminal violations. In the eyes of the court, this was particularly troubling, as it did not provide “definiteness” or fair notice to the public. These factors weighed strongly toward considering the order an emergency rule, for which the Legislature required a specific procedure. Since the Secretary failed to follow the procedure, the court ruled that the government could not enforce it.

Not content to rest the decision on this ground alone, the Supreme Court next analyzed the state’s communicable disease law. The Secretary claimed she had the authority to issue the Safer at Home Order consistent with her authority to “control communicable diseases.” The court dismissed her arguments, noting that the text of the law allowed only the quarantine or isolation of “persons infected or suspected of being infected” with the communicable disease. In trying to restrict the movement of the entire state, the Secretary exceeded her statutory authority, and the order was unenforceable.

Executive authority across the states has exploded in response to the COVID-19 crisis. Some of the powers exercised are certainly within the scope of the executive’s authority, while others exceed it. The Wisconsin Supreme Court has taken an important step in reigning in the Governor’s assertion of authority and, in doing so, exercised its constitutional check on authority for the benefit of hard-working Wisconsin residents.