The Legislature argued since the order was a rule of general application, not an administrative order, it was subject to the rulemaking procedures of the state.
The Wisconsin Supreme Court overturned the state’s stay-at-home order on May 13, concluding that Secretary of Health Services Andrea Palm overstepped her statutory authority when she issued the Safer at Home Order on April 16, 2020. The lawsuit, filed by the Wisconsin Legislature, challenged the validity of the Safer at Home Order on technical grounds, arguing that, because Secretary Palm did not comply with the statutory rulemaking procedures, it was unlawful. The Court agreed and struck down the order, which, among other things, prohibited nonessential travel and shuttered nonessential businesses through May 26, 2020.
Unlike with prior emergency orders, Secretary Palm did not invoke the executive authority granted by the governor in his emergency declaration directing the DHS to take “all necessary and appropriate measures” to address the COVID-19 pandemic. Instead, Secretary Palm relied on her statutory authority to issue the Safer at Home Order. The Legislature argued since the order was a rule of general application, not an administrative order, it was subject to the rulemaking procedures of the state. The majority agreed, explaining that the order, which also carried criminal consequences for noncompliance, was not properly promulgated as a rule and could not be enforced.
This decision is effective immediately, despite a request from the Legislature for a stay of an injunction until May 20, 2020, and a separate concurrence from Chief Justice Patience Roggensack, who authored the majority opinion, endorsing a stay. But, as the majority held, the “responsibility” for brokering a reopening plan rests with the Legislature and the Department of Health Services. The dissenting justices, however, urged the chief justice to clarify her position in her concurrence with regard to a stay of the Court’s decision. It is possible, therefore, that the Court may clarify that its decision is not “effective immediately,” but effective after a period of time.
In the absence of liability protections for businesses operating in Wisconsin during the pandemic or a brokered reopening plan between the Legislature and the governor in the coming days, businesses should proceed with caution when considering how to respond to the Supreme Court’s decision. Employers must also be aware of city and county restrictions in place. Indeed, immediately following the release of the Supreme Court’s decision, the mayor of Madison announced that a local “safer at home” order would be implemented for the city of Madison and Dane County. Local ordinances like the one in Madison and Dane County will carry forward the business restrictions and social distancing measures outlined in the Safer at Home Order.
The legal battle over stay-at-home orders extends beyond Wisconsin. In neighboring Michigan, for example, the Legislature filed a similar lawsuit against Governor Gretchen Whitmer, alleging her extension of the state of emergency in response to the COVID-19 pandemic was unlawful. The Michigan lawsuit raises constitutional arguments―unlike the technical, statutory arguments made in the Wisconsin case―and alleges that Governor Whitmer violated the separation of powers principle when she extended the state of emergency in her state without legislative input. Oral arguments are scheduled for May 15, 2020. As states begin grappling with the pressure to ease restrictions while maintaining their efforts to combat the pandemic, legal challenges like these will become more common in the days ahead.
Regardless of the decision by the Wisconsin Supreme Court, businesses in Wisconsin not subject to a local ordinance must still consider whether it is safe to reopen and what safety precautions to implement if they reopen. Businesses should make reasonable efforts to adopt the CDC guidelines for their businesses, or otherwise risk liability claims for the spread of COVID-19. The failure to mitigate the risks of COVID-19 transmission may result in harm (or worse) to employees, business partners and customers―and with that, the risk of potential liability. By focusing on legal liability, leaders can minimize the risk of harm, even if there is little or no legal risk.
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