On May 13, the Wisconsin State Supreme Court struck down the Safer at Home extension ordered by Department of Health Services Secretary-designee Andrea Palm. While the Court did not rule on the legality of the Safer at Home policy, it did rule the process by which the policy was implemented was illegal.

The Court ruled that Secretary-designee Palm did not have the singular authority to extend the Safer at Home order to May 26 and stipulated the action required emergency rulemaking procedure, which was not executed by the Department.

At the heart of the issue was whether or not DHS can extend the Safer at Home order beyond May 11. Governor Tony Evers declared a public health emergency in March. By law, such declarations expire after 60 days. In this specific instance, the expiration date was May 11. 

Emergency Order #28, issued by Palm, extended the Safer at Home order two weeks beyond the expiration date. Palm and DHS cited statute 252.02 as providing the department the authority to take actions to combat outbreaks of communicable disease outside the confines of a 60 day public health emergency declaration. Republican legislative leaders disagreed with the interpretation of that statute and filed the challenge in the State Supreme Court.

The ruling was decided on a 4 to 3 vote. One conservative member, Justice Brian Hagedorn, disagreed with his conservative colleagues, stating in his dissent, “The legislature may have buyer's remorse for the breadth of discretion it gave to DHS in Wis. Stat. § 252.02. But those are the laws it drafted; we must read them faithfully whether we like them or not.”

In the wake of the ruling, Wisconsin is now without a statewide strategy to combat COVID-19. While the Department of Health Services took direction from the ruling and submitted proposed emergency rules to the legislature for approval, it rescinded that proposal on May 18, after comments from Republican legislative leaders who want to leave ongoing strategies to local public health departments.

Dane County, for instance, issued its own Safer at Home order shortly after the Court’s ruling on May 13. Other counties followed suit, but some later rescinded after confusion over their legal authority to do so became unclear. This confusion caused Attorney General Josh Kaul to issue an opinion that nothing in the Supreme Court’s ruling affects the authority of local public health officials to issue Safer at Home orders for their jurisdictions.

There is, however, some public opposition to local orders. On Wednesday, May 20, a group of Wisconsin citizens filed a challenge against local orders on Constitutional grounds in federal court in Milwaukee. The challenge states that safer at home orders infringe upon rights to freely assembly and freely practice religion. There has yet to be any developments in the challenge beyond the initial filing.

WiAHC’s lobbyists continue to closely monitor the situation and will provide updates as they’re available.