The Wisconsin Supreme Court ruled that an order by the state’s health secretary limiting business operations to mitigate the spread of COVID-19 is unlawful.
In a 4-3 ruling delivered on Wednesday, the court upheld a lower court decision ruling that Department of Health Services Secretary-designee Andrea Palm’s October 2020 order limiting business operations to 25% capacity was invalidly enacted because it constituted a rule that under state law makes it subject to legislative oversight.
In its decision, the court said Palm’s order was “not validly enacted and was unenforceable” because it did not follow statutory rule-making procedures to involve the Legislature. Last year, the court took up a similar case, brought by the Wisconsin Legislature against Palm over the department’s “safer at home” order, and it ruled in May 2020 in favor of the Legislature, establishing the grounds for Wednesday’s ruling.
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In a concurrence, Justice Brian Hagedorn, who dissented in the previous decision, wrote, “Some details have changed, but this case arises because [the previous ruling] issued another order doing exactly what this court said she may not do: limit public gatherings by statewide order without promulgating a rule.”
“We held that Palm’s statewide order limiting public gatherings (along with a number of other restrictions) meets the statutory definition of a rule, and must be promulgated as a rule to have legal effect,” Hagedorn wrote.
In a dissenting opinion, Justice Ann Walsh Bradley accused the majority of engaging in a “hocus-pocus interpretation” of the statutes in question and argued that Wisconsin law “provides DHS with the authority to forbid public gatherings without going through rulemaking.”
“At a time when public health experts are imploring pandemic-weary Wisconsinites to stay vigilant, a faulty statutory analysis once again leads this court to undermine public health measures,” Bradley wrote.
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Wisconsin Gov. Tony Evers’s administration has battled with the Republican-led state Legislature throughout the coronavirus pandemic. Aside from the suit against the administration last year, the Legislature voted to revoke Evers’s mask order in February. He subsequently instituted another order, which the state’s high court ruled to be unlawful in March.
Wisconsin reported 1,127 new coronavirus cases and 11 deaths on Tuesday, totally over 647,000 cases and more than 7,000 deaths attributed to the virus since the pandemic began, according to data published by Johns Hopkins University. The state has administered more than 3.6 million vaccine doses, and 38% of residents have received at least one dose.
