April 22, 2020 – The Republican-controlled Wisconsin Legislature has challenged an emergency order that extends the statewide “safe-at-home” order issued by the Wisconsin Department of Health Services (DHS) to May 26, 2020.
The legislature yesterday filed an emergency petition for original action with the Wisconsin Supreme Court and asks the court to block the safe-at-home extension.
Noting the increasing spread of coronavirus, DHS on March 24 – at the direction of Democratic Gov. Tony Evers – issued a safe-at-home order (Emergency Order 12).
The emergency order mandated that individuals stay at home, with some exceptions for essential activities, essential government functions, essential business operations, essential travel, and special situations. That order expires on April 24, 2020.
However, on April 16, DHS Secretary Andrea Palm issued Emergency Order 28, which extends the safe-at-home order to May 26 and imposes school closures the remainder of the academic year, but eases some restrictions to allow basic business operations.
The extension order cites provisions within Wis. Stat. section 252.02 – statutory provisions that govern DHS authority – to issue the stay-at-home extension.
Wis. Stat. section 252.02(3) allows DHS to “close schools and forbid public gatherings in schools, churches, and other places to control outbreaks and epidemics.”
Wis. Stat. section 252.02(4) allows DHS to “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.”
Wis. Stat section 252.02(6) allows DHS to “authorize and implement all emergency measures necessary to control communicable diseases.”
However, in its emergency petition to block the extension, the legislature argues that DHS violated Wis. Stat. section 227.24 procedures when issuing the emergency rule, exceeded its authority, and the extension’s mandate is arbitrary and capricious.
Under section 227.24(1)(a), agencies may promulgate emergency rules “without complying with the notice, hearing, and publication requirements … if preservation of the public peace, health, safety, or welfare necessitates putting the rule into effect prior to the time it would take effect if the agency complied with the procedures.”
But the legislature argues that section 227.24(1)(e) still imposes certain requirements that DHS did not follow. These alleged missteps, the legislature argues, prevented the legislature from exercising its “constitutionally authorized oversight” of the DHS order.
The legislature now asks the supreme court to interpret state statutes that govern procedures and exemptions for promulgating emergency rules, and to temporarily block the safe-at-home extension that is set to take effect on Friday, April 24:
“The Legislature respectfully requests that this Court issue an order temporarily enjoining enforcement of Emergency Order 28, because it is an improperly promulgated rule under Wisconsin Statutes § 227.24, and because it exceeds the Department’s authority under § 252.02 and is arbitrary and capricious in violation of § 227.57(8).”
Under section 227.57(8), courts can reverse an agency action if “the agency's exercise of discretion is outside the range of discretion delegated to the agency by law; is inconsistent with an agency rule, an officially stated agency policy or a prior agency practice, if deviation therefrom is not explained to the satisfaction of the court by the agency; or is otherwise in violation of a constitutional or statutory provision; but the court shall not substitute its judgment for that of the agency on an issue of discretion.”
The petition requests a delay, for six days, of any temporary injunction the court may issue to allow DHS to draft a new emergency rule "consistent with Wisconsin law."