On May 13, 2020, the Wisconsin Supreme Court issued its decision in Wisconsin Legislature v. Palm, 2020 WI 42. In its decision, the Supreme Court ruled that Emergency Order 28 – Safer at Home, was unenforceable. There was some confusion initially in the media coverage of the decision as to when it would be effective. The Supreme Court’s decision invalidating the Safer at Home Order was effective immediately. Therefore, all of the restrictions found in the Safer at Home Order, other than the closure of schools, ended immediately upon the decision being published.
What does this mean for Brown and Outagamie County?
The Public Health Offices for various Municipalities and Counties in Wisconsin have rushed to fill the void created by the Supreme Court’s decision by issuing their own version of “Safer at Home” orders. These orders vary slightly. For instance, Brown County’s order merely incorporates the terms of Emergency Order 28, as modified by the “Turn the Dial” orders, and is set to expire on May 20th. Outagamie County, on the other hand, issued an order which largely copied the terms of the Emergency Order 28, as modified by the “Turn the Dial” orders. Unlike the Brown County order, however, Outagamie County’s order is not set to expire on a specific date. Rather, it will remain in effect until a superseding order is issued after the County has reached certain benchmarks in relation to the COVID-19 virus.
Who can enforce Safer at Home?
What does this mean and does a local public health official have more power than the Secretary of the State of Wisconsin’s Department of Health Services? The short answer is that we expect legal challenges to the County and Municipality orders to be successful, but the Supreme Court’s ambiguous decision does not provide as much guidance as we would have liked.
The Supreme Court’s decision in Palm can be broken down into two separate sections. The first section addresses what procedural requirements Secretary Palm was required to follow when promulgating Emergency Order 28. The Supreme Court determined that Secretary Palm did not follow the requisite procedural requirements and, as a result, Emergency Order 28 was invalid.
The second section of the Supreme Court’s decision looked at whether Secretary Palm had statutory authority to require individuals in Wisconsin to remain in their homes, not to travel and to close all businesses that she declares are not “essential”. When determining whether local public health officials have the authority to essentially adopt Emergency Order 28 on a local level, this is the portion of the decision that applies. Unfortunately, the Supreme Court’s analysis in this section is rather disjointed.
Secretary Palm argued Wis. Stat. § 252.02 granted her authority to issue Emergency Order 28. The local public health officials are relying on Wis. Stat. §252.03 when issuing their local Safer at Home orders. While not the same statute, there is similarity between the language of the two statutes, which may shed light on how the Supreme Court may rule on challenges to the authority of local public health officials to issue Safer at Home orders.
Secretary Palm relied on Sections 4 and 6 of Wis. Stat. § 252.02 when issuing Emergency Order 28. These sections state:
(4) . . . the department may promulgate and enforce rules or issue orders for guarding against the introduction of any communicable disease into the state, for the control and suppression of communicable diseases, for the quarantine and disinfection of persons, localities and things infected or suspected of being infected by a communicable disease . . .
(6) The department may authorize and implement all emergency measures necessary to control communicable diseases.
While the language of Wis. Stat. § 252.03 does not mirror the language identified above, it is similar. It states in relevant part:
(1) . . . The local health officer shall promptly take all measures necessary to prevent, suppress and control communicable diseases . . .
(2) Local health officers may do what is reasonable and necessary for the prevention and suppression of disease; may forbid public gatherings when deemed necessary to control outbreaks or epidemics and shall advise the department of measures taken.
As can be seen, Wis. Stat. § 252.02(4), authorizes Secretary Palm to issue orders “for the control and suppression of communicable diseases.” Local public health officials are likewise authorized by Wis. Stat. § 252.03(1) to take all measures necessary to “suppress and control communicable diseases.”
Due to the similarity in the language of the two statutes, the Supreme Court’s analysis of whether Wis. Stat. § 252.02(4) authorized Secretary Palm to enforce the restrictions found Emergency Order 28 should also apply to those restrictions the local public health officials instituted under Wis. Stat, § 252.03. Unfortunately, while the Supreme Court discussed why it felt Secretary Palm overreached when quarantining and restricting travel of healthy individuals, it did not provide any insight into what restrictions were or were not allowed under her power to issue orders for the control and suppression of communicable diseases. Rather, it merely stated in conclusory fashion that Wis. Stat. § did not allow Secretary Palm to close all for-profit and non-profit businesses in the state.
While the Supreme Court did not explain why the closure of businesses was not an appropriate action “for the control and suppression of communicable diseases,” it clearly did not feel it did. Therefore, it would only be logical that the Supreme Court would also find that the closure of businesses also would not be a proper measure to “suppress and control communicable diseases.”
The Supreme Court also acknowledged Secretary Palm’s argument that Emergency Order 28 was authorized pursuant to the broad grant of power found in Wis. Stat. § 252.02(6), which allowed her to “authorize and implement all emergency measures necessary to control communicable diseases.” Unfortunately, it did not address what this language allowed or did not allow Secretary Palm to do other than to indicate it did not provide a foundation for the imposition of criminal charges in Emergency Order 28.
The local public health officials have a similar broad grant of power in Wis. Stat. § 252.03(2) as they may “do what is reasonable and necessary for the prevention and suppression of disease . . .” Because the Supreme Court failed to address Secretary Palm’s assertion that this broad grant of power allowed her to issue Emergency Order 28, the argument that it likewise does not authorize the local public health officials to issue Safer at Home orders is not as strong as it should have been. Still, a comparison can be made and it is clear that the broad grant of power in Wis. Stat. 252.02(6) did not authorize the issuing of Emergency Order 28. Therefore, it stands to reason, the similar broad grant of power in Wis. Stat. § 252.03(2) also would not support the issuance of local Safer at Home orders.
Ultimately, based on the Supreme Court’s decision, we believe, but cannot guarantee, that the courts will strike down the local Safer at Home orders. Prior to that occurring, however, business can be cited for being open.