On April 21, 2020, Wisconsin’s legislature filed suit against Wisconsin’s Department of Health Services (“DHS”) Secretary-designee, Andrea Palm, seeking to temporarily enjoin or prohibit DHS or any local law enforcement official from enforcing Wisconsin’s April 16, 2020 “Safer at Home” Emergency Order (“April 16 Stay at Home Order”). The legislature is also seeking to stay enforcement of the resulting injunction for 6 days to allow DHS time to promulgate a new emergency rule consistent with Wisconsin law. The legislature’s emergency petition and accompanying motion for temporary injunction were filed in the Supreme Court of Wisconsin. In addition to naming DHS Secretary-designee Palm, the pleadings named DHS executives Julie Willems Van Dijk and Nicole Safar as respondents. The legislature’s memorandum in support of its emergency petition for original action and emergency motion for temporary injunction (“Memorandum”) is available here.
The April 16 Stay at Home Order went into effect April 24, 2020 and extends Wisconsin’s initial March 24 “Safer at Home” Emergency Order (“Initial Stay at Home Order”), also issued by DHS Secretary-designee Palm. [1] The new order remains in effect until May 26, 2020. The April 16 Stay at Home Order extended the majority of restrictions in the Initial Stay at Home Order, but notably allowed for a few specific businesses or operations to open, including, among others, public and private golf courses subject to certain restrictions and arts and craft stores via curb-side pick-up. The April 16 Stay at Home Order is available here.
In its lawsuit, the legislature alleges that the April 16 Stay at Home Order is, despite its title, an emergency rule subject to requirements of the Wisconsin Administrative Procedure Act, which the legislature argues were not followed prior to its issuance and which, if they had been, would have subjected the order to legislative oversight and/or review. The legislature further argues that even if the April 16 Stay at Home Order is found to be procedurally valid, the order should nevertheless be declared invalid as it constitutes an improper exercise of legislative power and exceeds DHS’ statutory authority.
Wisconsin statutes provide broad authority to the state’s governor during a public health emergency. Under current law, however, a state of emergency declared by a governor may not exceed 60 days absent a joint resolution of the legislature. Wisconsin Governor Tony Evers declared a state of emergency on March 12, 2020, and the state of emergency will automatically expire on May 11, 2020 unless extended by a joint resolution of the legislature. As a result, the legislature argues in its lawsuit that the April 16, 2020 Stay at Home Order extending the Initial Stay at Home Order through May 26, 2020, issued by Secretary-designee Palm and not Governor Evers, does not rely on any authority resulting from the state of emergency, and, instead, relies solely on the statutory powers of DHS. While the legislature acknowledges in its lawsuit that certain aspects of the April 16 Stay at Home Order are within DHS’ authority (e.g., school closures and bans on public gatherings), it argues DHS does not have authority to adopt or enforce an order closing businesses (and determining which are “essential” versus “non-essential”), quarantining healthy people in their homes, or banning all travel.
The lawsuit also takes issue with Wisconsin’s April 20, 2020 “Badger Bounce Back” Emergency Order, again issued by Secretary-designee Palm, which provides for a phased reopening of the State of Wisconsin if certain criteria or milestones are met. The April 20, 2020 Emergency Order is available here. The legislature argues that, like the April 16 Stay at Home Order, the Badger Bounce Back Emergency Order is an emergency rule that was issued without following the required emergency rulemaking process and exceeds DHS’ statutory authority.
The legislature argues that if the requested relief is not granted, it will be irreparably harmed as the alleged procedural violations will have deprived the legislature of its ability to exercise its constitutionally assigned oversight role. The lawsuit further alleges that the State of Wisconsin has been harmed and will continue to be harmed by the stay at home orders (citing the “[h]undreds and thousands of Wisconsinites [who] have lost their jobs[,] . . . overall business sales [that] have plummeted by more than 15.1%, and restaurants and travel-sector businesses . . . [that] have been decimated”).
Pursuant to a court order issued earlier this week, DHS is expected to file a written response by April 28, 2020.
Battles in other states are also anticipated. On April 23, 2020, Wisconsin’s neighboring state, Illinois, announced that it would be extending its stay at home order through May 30, 2020. In response, State Representative Darren Bailey filed a lawsuit against Illinois Governor JB Pritzker, alleging that Governor Pritzker is abusing his executive authority and infringing on the civil rights of Illinois residents. As other states across the nation seek to extend their stay at home orders, additional lawsuits are expected.
[1] Similar to other stay at home orders issued across the nation, the Initial Stay at Home Order mandated that all Wisconsinites stay in their homes, except in limited circumstances, and mandated that all “non-essential” businesses cease, except for the performance of “minimum basic operations” and operations consisting exclusively of employees or contractors working from home. The Initial Stay at Home Order is available here.
