MADISON, WI. (ECWd) -
"By the Court.—Palm's Emergency Order 28 is declared unlawful, invalid, and unenforceable."
In a 161 page decision and a 4-3 vote, the Wisconsin Supreme Court declared Governor Evers' stay at home Executive Order invalid. There were a total of 15 amicus curiae briefs entered.
The result of this Order is that all restrictions on people and businesses are immediately lifted.
Wisconsin Legislators filed this suit.
There is a good article on this at the Milwaukee Journal Sentinel (here).
Some key points:
- The dispute in this case involves whether the Secretary-designee of DHS issued an order in violation of the laws of Wisconsin——an order that impacts every person in Wisconsin, as well as persons who come into Wisconsin, and every "non-essential" business.
- The crux of the Legislature's claims is that Emergency Order 28 was promulgated without following required statutory procedures applicable to an emergency, and in so doing, Palm impinged upon the Legislature's constitutional core power and its functions under Wis. Stat.
The Wisconsin Sup Ct determined that:
- Emergency Order 28 is a Rule
- Emergency Order 28 does not rely on a statute within ch. 252 defining the elements of the crime to which punishment under Wis. Stat. § 252.25 must refer. Rather, the prohibited "criminal conduct" to which Palm refers is factually defined solely by Emergency Order 28. Stated otherwise, Palm created the potential for a crime by Order 28.
- . . . But the Governor's emergency powers are premised on the inability to secure legislative approval given the nature of the emergency. For example, if a forest fire breaks out, there is no time for debate. Action is needed. The Governor could declare an emergency and respond accordingly. But in the case of a pandemic, which lasts month after month, the Governor cannot rely on emergency powers indefinitely.
- If Emergency Order 28 had been promulgated as a rule, it has much more specificity; however, since no rulemaking occurred, Order 28 cannot save itself.
- However, Order 28 goes far beyond what is authorized in Wis. Stat. § 252.02(4). . . .Again, this directive is not based on persons infected or suspected of being infected.
- 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.
- 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.
- 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.
- 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.
- By the Court.—Palm's Emergency Order 28 is declared unlawful, invalid, and unenforceable.