Wisconsin Supreme Court Fints State’s Safer at Home Order Invalid

May 14, 2020 | Court | COVID | Current Events 


On May 13, the Wisconsin Supreme Court issued a decision finding Emergency Order #28, the extended Safer at Home order, “unlawful, invalid, and unenforceable”.

The State of Wisconsin Legislature had sued Andrea Palm, the Secretary of the Wisconsin Department of Health Services, over the validity of the order, claiming that Order #28 is a “rule” under Wisconsin statutes, which would require Secretary Palm to follow a specific rulemaking procedure in an emergency situation, one which includes legislative oversight. Secretary Palm, and the Wisconsin Department of Justice, argued that Order #28 was an emergency order pursuant to a statute purporting to provide wider discretion for the DHS Secretary to respond to communicable diseases, without being required to follow the same specific rule-making procedure.

The Supreme Court sided with the Legislature, finding Order #28 to be a rule and that Secretary Palm violated the law by not following the rulemaking procedure. The Court further found that the statute granting wider powers still, at least in this case, required Secretary Palm to follow the rulemaking procedure as Order #28 carried with it the potential for criminal penalties.

So, what does the Supreme Court’s ruling mean? What happens next?

This ruling terminates the statewide Safer at Home order, effective immediately. That means Wisconsin currently has no statewide response to the COVID-19 pandemic. This will have different effects throughout the state, as some counties and municipalities have implemented similar orders (more on that, below). The Supreme Court’s order here does not change, overturn, prevent, or otherwise alter any county- or local-level orders. In our area, both Dane and Rock Counties have implemented emergency orders mirroring Governor Evers’ Safer at Home Order as well as the “Badger Bounce Back” and “Turn the Dial” plans. They, and any other county-level orders throughout the state, are still in effect.

The ruling also acknowledges that a directive similar to Safer at Home can be issued, as long as it first goes through the rule-making procedure set forth in the statutes the Court found applied here.  This process takes time, however.  The Legislature had asked the Court, as part of its lawsuit, to delay the effect of its decision declaring Order #28 invalid by six days to provide some time for this rule-making process; however, the Court declined to institute such a delay.

The next steps, if DHS chose to take them, would be as follows: The agency (in this case, DHS) would prepare a “statement of the scope of the proposed emergency rule”, which would need to be approved by the Governor and the Department of Administration before sending it to the Legislative Reference Bureau for publishing. Within 10 days of publication, a chairperson for the Legislature’s Joint Committee for the Review of Administrative Rules may direct DHS to hold a preliminary public hearing. Alternatively, DHS can opt, on its own, to hold such a hearing, wherein testimony would be heard on the impact of the rule, if enacted. This hearing cannot occur sooner than 3 days after publication of the statement of the scope of the rule. After the hearing, DHS must then submit a final draft of the rule for the Governor’s approval, along with a “plain language analysis” of the rule, before finally resending the rule to the Legislative Reference Bureau for publication.  Whether this procedure will now be undertaken is currently unknown but seems unlikely.

Will schools reopen now?

No. The Supreme Court’s decision specifically notes that its order overturning Order #28 does not apply to the portion of Order #28 that closed schools.

Are businesses required to open?

Nothing requires private businesses to open. The decision means that businesses cannot be forced to close or follow any COVID-related requirements or restrictions. Nothing about this decision prevents a business from implementing any policies to mitigate the risk of COVID, such as requiring employees or customers to wear masks or practice social distancing. Again, the caveat is that multiple counties and municipalities still have COVID-related orders that, the validity of which are not directly impacted by the Supreme Court’s finding here.

Does this stop the stay on evictions in Wisconsin?

No. The order staying eviction proceedings in Wisconsin was a separate state order not affected by this case. Further, individual county courts may have their own stays on, or alterations to, eviction proceedings independently of any state order. Nothing in the Supreme Court’s decision yesterday affects either the state order staying evictions, or any local court order pertaining to evictions.

How can Dane County, and other counties and cities, issue the exact same order as the one the Supreme Court just overturned?

The statutes in controversy here apply to state government only. The counties that have implemented similar orders have done so under county/local ordinances or state laws not directly implicated the Supreme Court’s ruling.

The following counties and cities/municipalities have, as of this writing, at least some form stay-at-home order in place:














Lake Geneva


Menomonee Falls




South Milwaukee

St. Francis

Some other counties have issued reopening guidelines for businesses, but do not have formal stay at home orders in place.

Did the Wisconsin Supreme Court determine that the Safer at Home order was not necessary for safety?

The Supreme Court did not engage in any sort of qualitative analysis about whether the restrictions were necessary, whether they worked, or whether they were in the public’s best interest  — those were not the issues before the Court. The Court clarified that Governor Evers’ order declaring a State of Emergency was not at issue. The issue was whether the Secretary of the Department of Health Services exceeded her authority and encroached on the Legislature’s powers.

How does this ruling effect an employee’s eligibility for unemployment insurance under the CARES Act?

Outside of the counties/municipalities with stay-at-home orders in effect, employees may find changes to their eligibility for unemployment benefits under the CARES Act. Suppose a business that was closed due to the Safer at Home order now decides to open, because it is not restricted from doing so. Can employees still receive unemployment if the threat of COVID prevents them from coming in to work?

It depends. CARES Act eligibility extends unemployment benefits to those who need to provide childcare due to the closure of schools or other childcare sources, those who are diagnosed with COVID or caring for a family member with COVID, someone subject to a quarantine order, or someone advised by a health-care provider to self-quarantine due to concerns related to COVID.  If any of these conditions apply, an employee is still eligible for unemployment. If an employer is open, work is available to the employee, and the employee does not meet one of these conditions, they may be ineligible for unemployment benefits.

If you have questions about the rights and obligations of your business in light of these developments, contact Kramer, Elkins & Watt, LLC. Stay tuned to KEW Tips for updates as they occur. In the meantime, stay safe!