DHS Emergency Order 28 "Safer at Home" Overturned
May 13, 2020
In a 4-3 decision, the Wisconsin Supreme Court struck down the DHS Emergency Order 28 Safer at Home. See Wisconsin Legislature vs. Andrea Palm , 2020 WI 42. The Court concluded that Emergency Order 28 is a general order of general application and, thus, a rule subject to the emergency rulemaking procedures specified in Wis. Stat. § 227.24. The Court held that the order is unenforceable because the rulemaking procedures were not followed, and there can be no criminal liability for those who violate the order. Additionally, 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” in that it extends beyond preventing communicable diseases from entering the state (by prohibiting all travel and not just interstate travel), forbids gatherings outside a single household without such directive being based on persons being infected or suspected of being infected, and closes for- and non-profit businesses without citing authority for doing so. Notably, in a footnote, the Court stated that its decision does not apply to that portion of Emergency Order 28 which closed schools for the remainder of the school year.

The Court declined the Legislature’s request to stay any enforcement of an injunction for six days, noting that more than two weeks have passed since they began considering the case and “[t]herefore, we trust that the Legislature and Palm have placed the interests of the people of Wisconsin first and have been working together in good faith to establish a lawful rule that addresses COVID-19…” The majority opinion was authored by Chief Justice Roggensack, who was joined by Justices Kelly, R.G. Bradley, and Ziegler. Justices A. Bradley, Dallet, and Hagedorn dissented.

Read the full opinion here .