On May 13, 2020, the Wisconsin Supreme Court struck down an order (the Stay-At-Home Order) authorized by the governor that commanded, among other things, non-essential personnel to stay home and the closure of non-essential businesses because of the coronavirus pandemic. The Wisconsin Supreme Court held that the Stay-At-Home Order was issued improperly because it did not undergo statutory emergency rule-making procedures that were established by the Wisconsin Legislature (the Legislature).
On March 12, 2020, the governor issued an executive order declaring a public health emergency, and designating the Wisconsin Department of Health Services (DHS) to take all necessary and appropriate measures to respond to the COVID-19 coronavirus pandemic. The Stay-At-Home Order was promulgated by the Wisconsin Secretary-designee of DHS (the Secretary) on April 16, 2020. The Legislature brought an original action in the Wisconsin Supreme Court, claiming that the Stay-At-Home Order invaded the Legislature’s constitutional powers.
The Wisconsin Supreme Court sided with the Legislature, holding that the order was subject to statutory rule-making procedures because it was a general order applicable to every person physically present in the state. Because the Stay-At-Home Order did not undergo the proper rule-making procedure, it was invalid. Importantly, although the Wisconsin Supreme Court emphasized that it was only ruling on the Secretary’s order and not the governor’s, it noted that the governor’s emergency powers are predicated on the inability to gain legislative approval in a time-sensitive emergency, and the governor cannot rely on those powers indefinitely.
In addition, the Wisconsin Supreme Court found that the criminal penalties prescribed by the Stay-At-Home Order were invalid for failure to undergo the same legislative rulemaking. And although the Secretary also argued that the Stay-At-Home Order was valid because of the statutory authority the Legislature granted directly to DHS, the Wisconsin Supreme Court held that the order was overly broad, and exceeded any statutory authority.
Accordingly, the Wisconsin Supreme Court declared the Stay-At-Home Order “unlawful, invalid, and unenforceable.”