Please ensure Javascript is enabled for purposes of website accessibility

Statutory Authority – Emergency Order 28

By: Derek Hawkins//June 10, 2020//

Statutory Authority – Emergency Order 28

By: Derek Hawkins//June 10, 2020//

Listen to this article

WI Supreme Court

Case Name: Wisconsin Legislature v. Andrea Palm, et al.,

Case No.: 2020 WI 42

Focus: Statutory Authority – Emergency Order 28

This case is about the assertion of power by one unelected official, Andrea Palm, and her order to all people within Wisconsin to remain in their homes, not to travel and to close all businesses that she declares are not “essential” in Emergency Order 28. Palm says that failure to obey Order 28 subjects the transgressor to imprisonment for 30 days, a $250 fine or both. This case is not about Governor Tony Evers’ Emergency Order or the powers of the Governor.

Accordingly, we review the Wisconsin Legislature’s Emergency Petition for Original Action that asserts: (1) Palm as Secretary-designee of the Department of Health Services (DHS), broke the law when she issued Emergency Order 28 after failing to follow emergency rule procedures required under Wis. Stat. § 227.24 (2017-18), and (2) even if rulemaking were not required, Palm exceeded her authority by ordering everyone to stay home, closing all “non-essential” businesses, prohibiting private gatherings of any number of people who are not part of a single household, and forbidding all “non-essential” travel. Palm responded that Emergency Order 28 is not a rule. Rather, it is an Order, fully authorized by the powers the Legislature assigned to DHS under Wis. Stat. § 252.02.

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. Emergency Order 28 is a general order of general application within the meaning of Wis. Stat. § 227.01(13), which defines “Rule.” 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.6 Furthermore, Wis. Stat. § 252.25 required that Emergency Order 28 be promulgated using the procedures established by the Legislature for rulemaking if criminal penalties were to follow, as we explain fully below. 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 do not conclude that Palm was without any power to act in the face of this pandemic. However, Palm must follow the law that is applicable to state-wide emergencies. 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.

Rights declared

Concur: ROGGENSACK, C.J., delivered the majority opinion of the Court, in which ZIEGLER, REBECCA GRASSL BRADLEY, and KELLY, JJ., joined. ROGGENSACK, C.J., filed a concurring opinion. REBECCA GRASSL BRADLEY, J., filed a concurring opinion, in which KELLY, J. joined. KELLY, J., filed a concurring opinion, in which REBECCA GRASSL BRADLEY, J., joined.

Dissent: ANN WALSH BRADLEY, J., filed a dissenting opinion, in which DALLET, J., joined. DALLET, J., filed a dissenting opinion, in which ANN WALSH BRADLEY, joined. HAGEDORN, J., filed a dissenting opinion, in which ANN WALSH BRADLEY, and DALLET, JJ., joined with respect to ¶¶198-258.

Full Text


Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.

Polls

Should Steven Avery be granted a new evidentiary hearing?

View Results

Loading ... Loading ...

Legal News

See All Legal News

WLJ People

Sea all WLJ People

Opinion Digests