In a majority opinion from Wisconsin Supreme Court Chief Justice Patience Roggensack issued Wednesday, May 13, 2020, the high court ruled that state statutes do not support and law-making rules were not followed for Emergency Order 28, known as Safer at Home.
The ruling does not apply to schools.
It makes the order null and void, the court ruled four to three. Issued last March in the wake of the COVID-19 pandemic, Safer at Home was extended past its original April 24 expiration date, to May 26, by order of Department of Health Services Secretary-designate Andrea Palm. On April 21, Republican legislators challenged Palm's authority to do so in their petition to the Supreme Court.
"By the court.—[Department of Health secretary-designee Andrea] Palm's Emergency Order 28 is declared unlawful, invalid and unenforceable," Roggensack wrote in the conclusion court's majority opinion.
The court was split with a majority of four (Justices Roggensack, Rebecca Bradley, Daniel Kelly and Annette Ziegler) voting to nullify Safer at Home, with three (Justices Ann Walsh Bradley, Rebecca Dallet and Brian Hagedorn) opposing that majority.
No six-day stay on the repeal decision was issued, as asked for in the state legislature's court filings, which would have given some time for the DHS to issue a new order in line with the court's ruling. The court said it was the responsibility of the DHS and Legislature to do this.
This means that any future stay-at-home orders would need the approval of the Legislature's rulemaking committee.
On May 5, justices heard oral arguments from attorneys representing the DHS and Legislature. The decision was issued late Wednesday afternoon, May 13.
According to court documents, the basis for striking down Safer at Home centered around three major parts. First, the order was deemed a "rule" and was not created in accordance with emergency rule-making procedures established by the legislature. Second and related to the first part, because the procedures were not followed, the Safer at Home order and any criminal penalties (a $250 fine and/or 30 days in jail) were not enforceable. Third, Palm exceeded her authority as defined in state statutes by "confining all people to their homes, forbidding travel and closings businesses."
Justices Roggensack, Rebecca Bradley and Kelly wrote separate opinions in agreement with the majority ruling.
Justices Ann Walsh Bradley, Dallet and Hagedorn wrote separate opinions dissenting with the majority ruling.