Wis. Supreme Court set to decide on whether Stay at Home Order is lawful

Published: May. 5, 2020 at 7:20 PM CDT
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The fate of the Stay at Home order is in the hands of the Wisconsin Supreme Court. Justices heard arguments and asked questions of the attorneys representing the Department of Health Services secretary-designee Andrea Palm and republican legislators.

The Wisconsin legislature brought the lawsuit against Palm claiming that she exceeded her authority and also did not enact the order lawfully.

The court will make decisions on two questions:

1) Whether the Department of Health Services (the Department) violated

, governing emergency rules, by issuing

without complying with § 227.24’s procedures?

2) Even if the Department did not violate § 227.24, whether Emergency Order No. 28 exceeds the Department’s authority by closing all “nonessential” businesses, ordering all Wisconsin persons to stay at home, and forbidding all “nonessential” travel?

"Isn't it the very definition of tyranny for one person to order people to be imprisoned for going to work among other ordinarily lawful activities," Justice Rebecca Bradley asked assistant attorney general, Colin Roth who is representing Palm. "Where does the constitution say that's permissible, counsel?"

"The constitution provides that the legislature may enact statutes to protect the public health, and that is exactly what the legislature has done in


, and

," Roth replied. "So, I think that expression of legislative intent that grants DHS the power to do whatever is necessary to combat a novel, deadly, communicable disease like the one we're facing today is where we find that consent..."

"Are there any statutory or constitutional limits on the powers of the secretary," Justice Rebecca Bradley asked, interrupting Roth.

"There absolutely are, your honor," he responded. "I think there are a variety of ways in which DHS's powers are limited under these statutes. The first thing I'd say is judicial review is always available to determine whether DHS has taken power-- has taken an order that has exceeded the scope of its statutory authority and that's exactly what we're here today to do."

"There's also judicial review if DHS has taken action to combat an infectious disease that burdens fundamental constitutional rights, such as the freedom of assembly, the freedom of religion, the freedom to travel and I would not that all of those claims are not in this case," he continued.

Those claims are in a petition to the supreme court, however about those rights in a separate case filed Monday evening.

Chief Justice Patience Roggensack clarified with Roth, asking if there are any limits before someone has to file a lawsuit. The short answer, no.

After a similar line of questioning, Roth put the responsibility of the power back on the legislature.

"The statutory text empowers DHS to take all necessary action to combat communicable diseases," he stated. "I understand your honor may be uncomfortable with that broad grant of authority in the sense that you think it may allow DHS to go too far. I humbly submit to you that that concern is best addressed to the legislature and asking them to amend the statute that they passed and lobby them to add limitations to the kind that your honor is discussing."

Several justices mentioned they believe there is a question of whether that law, specifically Wis. Stat. § 252.02 (6), is too broad and thus unconstitutional. However, neither parties are arguing the constitutionality of the broad authority given to DHS in a public health emergency.

"We like to think we write statutes that are constitutional and we have done so here," Ryan Walsh, the attorney representing the legislature said.

What Walsh is arguing, however, is that Emergency Order No. 28 is not an order, but a "rule," as defined in

, which means the legislature has to promulgate or put the order terms into law before it's enacted. If the court agrees, that means the order is invalid.

Even if it does not agree, the court has to determine if DHS overstepped its authority by criminalizing otherwise lawful behavior.

The court also discussed what kind of relief the legislature wanted from this case, and what would happen if the court threw out the order in the midst of the pandemic.

Walsh said they are asking that if the court agrees with them, that the court would stay the order, meaning leave it in place for six days so that DHS and the governor had time to act and work with the legislature.

"Why would we let an unlawful order continue in place," asked Justice Rebecca Bradley.

"Your honor raises a good point if it's unlawful, it should be enjoined immediately," Walsh responded. "We are irreparably harmed by our statutes being not complied with. I take your point, your honor. We've just-- we've conceded that given the equities if there is a pause, if there is a period of six days during which this injunction is not enforced, that takes all of DHS's arguments off the table."

"Counsel, what kind of chaos in your mind would exist if this court just simply said the order is unlawful and that's it," Justice Ann Walsh Bradley asked Walsh. "What are the ramifications for the people of this state?"

"The ramifications, your honor, are that the governor and his agencies, which derive their powers from the legislature, would need to sit down with the legislative branch and come up with a bipartisan, sensible response to this pandemic going forward," Walsh responded.

Justice Ann Walsh Bradley asked the same question to Roth.

"Your honor, everyone understands that such an order would be absolutely devastating and extraordinarily unwise and that is exactly why the legislature asked for a six-day stay of any order," Roth responded. "It understands that if Safer at Home is enjoined with nothing to replace it, and people pour out into the streets that the disease will spread like wildfire and we will be back into a terrible situation of an out of control virus with no weapon to fight it."

Walsh did not make that leap to say that it could cause death and increased spread, but given protests against the Stay at Home order around the state, Roth urged the legislature has the same concern.

The court did not state when it would make a decision on the case but met in closed session later Tuesday afternoon.