The Wisconsin Supreme Court ruled yesterday that Emergency Order 28, the current version of Wisconsin’s “Safer at Home” order, is “unlawful, invalid, and unenforceable” because the governor’s office exceeded its emergency rulemaking power.  The court concluded that the order’s directions “confining all people to their homes, forbidding travel and closing businesses exceeded the statutory authority of” Wisconsin Department of Health and Services Secretary-designee Andrea Palm.  Accordingly, “there can be no criminal penalties for violations of [the] order.”  

The immediate consequences of the decision are unclear.  Though four of the seven justices ruled that the rule is unconstitutional and cannot be enforced, Chief Justice Patience Roggensack (one of the justices in the majority) also concluded, “although our declaration of rights is effective immediately, I would stay future actions to enforce our decision until May 20, 2020.”  

However, if the Safer at Home order is unenforceable and not immediately replaced by another order, it is not clear what further legal “actions” would be forthcoming.  The governor’s office has taken the position that the stay-at-home order is immediately ineffective.  Nevertheless, any business seeking to take actions prohibited by the Safer at Home order are advised to seek legal advice.  In addition to any state orders, Wisconsin local units of government are poised to issue orders filling in gaps in their jurisdictions.

In all events, the court has encouraged the Governor and the Legislature to work together to craft a new order in compliance with Wisconsin’s Constitution and statutes.  Should any revised order be released, we will provide immediate analysis.

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