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COVID-19 Wisconsin Update #65 (5-13-20 PM)

Wisconsin Supreme Court strikes down extension of Wisconsin’s Safer at Home order

The State of Wisconsin Supreme Court, in a 4-3 decision, declared that Emergency Order #28 (EO #28) is “unlawful, invalid and unenforceable.”

In coming to this conclusion the majority of the Court found that EO #28 is a rule and therefore subject to statutory rulemaking procedures established by the Legislature. Because the emergency rulemaking procedures were not followed, the Court concluded that EO #28 is not enforceable. Further the court concluded that because Department of Health Services Secretary-designee Andrea Palm “did not follow the law in creating Order 28, there can be no criminal penalties for violations of her order.” Further, the Court concluded that Secretary Palm’s order confining all people to their homes, forbidding travel and closing businesses exceeded the statutory authority of Wis. Stat. § 252.02.

The Legislature requested in their briefing to the Court that if they prevailed before the Court, that the Court would order a six-day stay before the decision would go into effect. The Court did not issue a stay, so the decision declaring EO #28 unlawful, invalid and unenforceable is immediate.

Because of the immediacy of the decision, businesses that were previously required to be closed; restaurants, taverns, places of amusement, theaters, etc…, are now allowed to open, unless local restrictions are enacted. The Tavern League of Wisconsin posted a message on its website to its members “We will get you a more detailed summary of the decision, however, according to the ruling you can OPEN IMMEDIATELY!”

Local restrictions

Public Health Madison & Dane County, immediately following the announcement of the Supreme Court decision, utilized their local authority to issue a City of Madison and Dane County order that adopts the provisions of EO #28 as well as the provisions contained in Emergency Orders #34 and #36 (the “Turn the Dial” orders that allowed for curbside pickup for retail and opening smaller retail operations to up to 5 patrons).  This order is effective immediately and remains in effect until Tuesday, May 26th, 2020. So in the city of Madison and Dane County, bars, restaurants and other businesses not opened under EO #34 and #36 must remain closed under the local public health authority until May 26th.

In a media interview Governor Evers’ chief legal counsel Ryan Nilsestuen suggested because local health jurisdictions are not impacted by the ruling, there will likely be many other local public health officials passing similar orders, creating a patchwork of regulations around the state.

What’s next?

In an interview with members of the media, Governor Evers said that this Administration will begin the rulemaking process for a new rule tomorrow by submitting a scope statement for an emergency rule to the Legislature.

Reaction to the Supreme Court Decision

Gov. Evers’ Statement on Wisconsin Supreme Court Ruling

Gov. Tony Evers today issued the following statement regarding the Supreme Court of Wisconsin’s ruling that puts the health and safety of Wisconsinites across the state at risk by ending Wisconsin’s Safer at Home order, effective immediately, and requiring the Wisconsin Department of Health Services (DHS) to go through the rulemaking process to be able to respond to an epidemic.

“Up until now, Wisconsin was in a pretty good place in our battle against COVID-19. We had reached almost all our gating criteria. We had opened up 14,000 small businesses across the state, putting 90,000 folks back to work, and that was because of the good work of Wisconsinites across our state who banded together, stayed home, and stayed safe,” said Gov. Evers. “Despite that good work, Republican legislators have convinced 4 justices to throw our state into chaos.

“We cannot let today’s ruling undo all the work we have done and all the sacrifices Wisconsinites have made over these past few months. We need everyone to continue doing their part to keep our families, our neighbors, and our communities safe by continuing to stay safer at home, practice social distancing, and limit travel, because folks, deadly viruses don’t wait around for politicians and bureaucrats to settle their differences or promulgate rules.

“This virus has killed more than 400 of our family members, friends, and neighbors and thousands more across our state are sick. I am disappointed in the decision today, but our top priority has been and will remain doing what we can and what we have to do to protect the health and safety of the people of our state. After months of unproductive posturing, I hope the folks in the Legislature are ready to do the same.”


Speaker Vos/Majority Leader Fitzgerald Statement on Supreme Court Ruling

Speaker Robin Vos (R-Rochester) and Senate Majority Leader Scott Fitzgerald (R-Juneau) released the following statement after the Wisconsin State Supreme Court made its ruling in Wisconsin Legislature v. Andrea Palm, declaring Emergency Order 28 unenforceable.

“When we met with Governor Evers a week ago, we asked him to begin negotiating with us on a plan for reopening. He politely declined and said we should wait for the court decision. Now that the decision has been rendered, we are confident Wisconsin citizens are up to the task of fighting the virus as we enter a new phase.

“The recent Marquette Law School Poll found that 77 percent said they would be comfortable visiting a friend or family member’s home. This ruling allows people to once again gather with their loved ones or visit their places of worship without the fear of violating a state order.

“Republicans believe business owners can safely reopen using the guidelines provided by the Wisconsin Economic Development Corporation. We urge our fellow small business owners to utilize the suggestions as a safe and effective way to open up our state.

“Wisconsin now joins multiple states that don’t have extensive ‘stay at home orders’ but can continue to follow good practices of social distancing, hand washing, hand sanitizer usage and telecommuting. This order does not promote people to act in a way that they believe endangers their health.

“We would urge the Evers administration to work with us to begin promulgating rules that would provide clear guidance in case COVID-19 reoccurs in a more aggressive way.”


Attorney General Josh Kaul

Wisconsin Attorney General Josh Kaul released the following statement in response to the Wisconsin Supreme Court decision regarding the Safer At Home Emergency Order 28.

“Wisconsinites’ actions have saved many lives, and we’ve made meaningful progress in the fight against the coronavirus. At the legislature’s urging, however, the plan that’s been working has largely been struck down.

“For decades, Wisconsin law has given the State’s chief health official the authority to ‘close schools and forbid public gatherings in schools, churches, and other places to control outbreaks and epidemics’; to ‘issue orders … for the control and suppression of communicable diseases’; and to ‘authorize and implement all emergency measures necessary to control communicable diseases.’ Wis. Stat. § 252.02(3), (4), (6). These broad grants of authority show that prior generations of lawmakers recognized that addressing a public health crisis like the one we face now can require urgent and extraordinary actions. But today’s decision means that this authority is subject to a legislative committee’s veto and that there will be a delay of more than 10 days before decisions made pursuant to this authority can go into effect.

“Over a week ago, I called on the legislature to act immediately. Unfortunately, it failed to do so, and Republicans in the legislature still have offered no plan to address the coronavirus. They can’t keep waiting to do so. In the middle of the fight against this virus, we need reasonable rules in place that protect Wisconsinites’ health. In the meantime, I ask all Wisconsinites to continue helping to fight the coronavirus by socially distancing and following other recommendations from public health experts.”

Wisconsin Manufacturers & Commerce (WMC)

Wisconsin Manufacturers & Commerce (WMC) President & CEO Kurt Bauer released the following statement after the Wisconsin Supreme Court struck down Emergency Order #28 – which extended the state’s Safer at Home order – as unlawful, invalid and unenforceable:

“We commend the state Supreme Court for upholding the rule of law and understanding that coequal branches of government must work together, especially in times of crisis. Today’s decision is a win for the state’s economy, countless businesses and hundreds of thousands of unemployed Wisconsinites who are ready to get back to work. WMC looks forward to working collaboratively with the legislature and Gov. Evers to ensure the state begins its economic recovery in a safe and sustainable way so we can protect both lives and livelihoods.”

Previous Wisconsin COVID-19 Updates

Previous COVID-19 Updates are archived here

Here is a comprehensive list of State of Wisconsin resources related to the public health emergency (LINK)

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