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2020 WI 42 SUPREME COURT OF WISCONSIN CASE NO.: 2020AP765-OA COMPLETE TITLE: Wisconsin Legislature, Petitioner, v. Secretary-Designee Andrea Palm, Julie Willems Van Dijk and Lisa Olson, In Their Official Capacities As Executives of Wisconsin Department of Health Services, Respondents. ORIGINAL ACTION OPINION FILED: May 13, 2020 SUBMITTED ON BRIEFS: ORAL ARGUMENT: May 5, 2020 SOURCE OF APPEAL: COURT: COUNTY: JUDGE: JUSTICES: ROGGENSACK, C.J., delivered the majority opinion of the Court, in which ZIEGLER, REBECCA GRASSL BRADLEY, and KELLY, JJ., joined. ROGGENSACK, C.J., filed a concurring opinion. REBECCA GRASSL BRADLEY, J., filed a concurring opinion, in which KELLY, J. joined. KELLY, J., filed a concurring opinion, in which REBECCA GRASSL BRADLEY, J., joined. ANN WALSH BRADLEY, J., filed a dissenting opinion, in which DALLET, J., joined. DALLET, J., filed a dissenting opinion, in which ANN WALSH BRADLEY, joined. HAGEDORN, J., filed a dissenting opinion, in which ANN WALSH BRADLEY, and DALLET, JJ., joined with respect to ¶¶198-258. NOT PARTICIPATING: ATTORNEYS: For the petitioners, there was a petition and reply filed by Eric M. McLeod, Lane E.B. Ruhland and Husch Blackwell LLP, Madison and Ryan J. Walsh, John K. Adams, Amy Miller and Eimer Stahl LLP, Madison. There was an oral argument by Ryan J. Walsh, Madison. For the respondents, there was a response filed by Colin A. Hector, Thomas C. Bellavia, Colin R. Stroud, Hannah S. Jurss, Steven C. Kilpatrick, assistant attorneys general, and Joshua L. Kaul, attorney general. There was an oral argument by Colin Thomas Roth, assistant attorney general. An amicus curiae brief was filed on behalf of The Tavern League of Wisconsin by James A. Friedman, Zachary P. Bemis, Maxted M. Lenz and Godfrey & Kahn, S.C., Madison. An amicus curiae brief was filed on behalf of Wisconsin Faith Voices for Justice by Stephen E. Kravit, Benjamin J. Glicksman and Kravit, Hovel & Krawczyk, S.C., Milwaukee. An amicus curiae brief was filed on behalf of Americans for Prosperity – Wisconsin by Matthew M. Fernholz and Cramer, Multhauf & Hammes, LLP, Waukesha and Eric R. Bolinder, pro hac vice, Arlington, Virginia. An amicus curiae brief was filed on behalf of Wisconsin Manufacturers and Commerce and Wisconsin Dairy Alliance by Robert I. Fassbender and Great Lakes Legal Foundation, Madison and Corydon J. Fish, Madison. An amicus curiae brief was filed on behalf of Wisconsin Public Health Association, Wisconsin Nurses Association, Wisconsin Chapter of American Academy of Pediatrics and Other Healthcare Amici Curiae by Jeffrey A. Mandell and Stafford Rosenbaum LLP, Madison. An amicus curiae brief was filed on behalf of Legal Scholars as Amici Curiae by Miriam Seifter, Robert Yablon and the University 2 of Wisconsin Law School and Barry J. Blonien and Boardman & Clark LLP, Madison. An amicus curiae brief was filed on behalf of Wisconsin Association of Local Health Departments and Boards and Associated Municipalities and Counties by Paul V. Gagliardi, Salem. An amicus curiae brief was filed on behalf of 24 Wisconsin Community, Advocacy, Labor and Membership Organizations by Douglas M. Poland and Rathje Woodward LLC, Madison and Richard Saks and Hawks Quindel, S.C., Milwaukee. An amicus curiae brief was filed on behalf of Hunter Nation, Wisconsin Lakeshore Business Association, Sport-Fishing Guides and Individual Anglers by Adam M. Jarchow and Jarchow Law, LLC, Clear Lake. An amicus curiae brief was filed on behalf of Legal Action of Wisconsin, Inc. by Amanda C. Aubrey, Carlos N. Bailey and Robert Bebb Held, Madison. An amicus curiae brief was filed on behalf of Americans for Prosperity – Wisconsin by Matthew M. Fernholz and Cramer, Multhauf & Hammes, LLP, Waukesha and Eric R. Bolinder, pro hac vice, Arlington, Virginia. An amicus curiae brief was filed on behalf of Disability Rights Wisconsin, The Arc Wisconsin, The Arc and Disability and Aging Organizations by Elaine J. Goldenberg, pro hac vice, Brendan B. Gants, pro hac vice and Munger, Tolles & Olson LLP, Washington D.C. and Kristin M. Kerschensteiner, Madison and Lauren C. Barnett, pro hac vice and Munger, Tolles & Olson LLP, Los Angeles, California and Shira Wakschlag, pro hac vice, Washington, D.C. 3 An amicus curiae brief was filed on behalf of Milwaukee Teachers’ Education Association, Madison Teachers, Inc., SEIU Healthcare Wisconsin, and Amalgamated Transit Union Local 998 by Lester A. Pines, Tamara B. Packard, Christa O. Westerberg and Pines Bach LLP, Madison. An amicus curiae brief was filed on behalf of Independent Business Association of Wisconsin, Double Decker Automotive, Inc. and Shear Xcellence, LLC by Richard M. Esenberg, Luke Berg, Anthony LoCoco, Lucas Vebber and Wisconsin Institute for Law and Liberty, Inc., Milwaukee. An amicus curiae brief was filed on behalf of Washington County, Wisconsin by Bradley S. Stern, county attorney, West Bend. 4 2020 AP 42 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2020AP765-OA STATE OF WISCONSIN : IN SUPREME COURT Wisconsin Legislature, Petitioner, FILED v. Secretary-Designee Andrea Palm, Julie Willems MAY 13, 2020 Van Dijk and Lisa Olson, In Their Official Capacities As Executives of Wisconsin Sheila T. Reiff Clerk of Supreme Court Department of Health Services, Respondents. ROGGENSACK, C.J., delivered the majority opinion of the Court, in which ZIEGLER, REBECCA GRASSL BRADLEY, and KELLY, JJ., joined. ROGGENSACK, C.J., filed a concurring opinion. REBECCA GRASSL BRADLEY, J., filed a concurring opinion, in which KELLY, J. joined. KELLY, J., filed a concurring opinion, in which REBECCA GRASSL BRADLEY, J., joined. ANN WALSH BRADLEY, J., filed a dissenting opinion, in which DALLET, J., joined. DALLET, J., filed a dissenting opinion, in which ANN WALSH BRADLEY, joined. HAGEDORN, J., filed a dissenting opinion, in which ANN WALSH BRADLEY, and DALLET, JJ., joined with respect to ¶¶198-258. ORIGINAL ACTION. Rights declared. ¶1 PATIENCE DRAKE ROGGENSACK, C.J. This case is about the assertion of power by one unelected official, Andrea Palm, and her No. 2020AP765-OA order to all people within Wisconsin to remain in their homes, not to travel and to close all businesses that she declares are not "essential" in Emergency Order 28. Palm says that failure to obey Order 28 subjects the transgressor to imprisonment for 30 days, a $250 fine or both. This case is not about Governor Tony Evers' Emergency Order or the powers of the Governor. ¶2 Accordingly, we review the Wisconsin Legislature's Emergency Petition for Original Action that asserts: (1) Palm as Secretary-designee of the Department of Health Services (DHS), broke the law when she issued Emergency Order 28 after failing to follow emergency rule procedures required under Wis. Stat. § 227.24 (2017-18),1 and (2) even if rulemaking were not required, Palm exceeded her authority by ordering everyone to stay home,2 closing all "non-essential" businesses,3 prohibiting private gatherings of any number of people who are not part of a single household,4 and forbidding all "non-essential" travel.5 Palm responded that Emergency Order 28 is not a rule. Rather, it is an Order, fully authorized by the powers the Legislature assigned to DHS under Wis. Stat. § 252.02. 1 All subsequent references to the Wisconsin Statutes are to the 2017-18 version unless otherwise indicated. 2 Order 28, Section 1. 3 Id., Section 2. 4 Id., Section 3. 5 Id., Section 5. 2 No. 2020AP765-OA ¶3 We conclude that Emergency Order 28 is a rule under the controlling precedent of this court, Citizens for Sensible Zoning, Inc. v. DNR, 90 Wis. 2d 804, 280 N.W.2d 702 (1979), and therefore is subject to statutory emergency rulemaking procedures established by the Legislature. Emergency Order 28 is a general order of general application within the meaning of Wis. Stat. § 227.01(13), which defines "Rule." Accordingly, the rulemaking procedures of Wis. Stat. § 227.24 were required to be followed during the promulgation of Order 28. Because they were not, Emergency Order 28 is unenforceable.6 Furthermore, Wis. Stat. § 252.25 required that Emergency Order 28 be promulgated using the procedures established by the Legislature for rulemaking if criminal penalties were to follow, as we explain fully below. Because Palm did not follow the law in creating Order 28, there can be no criminal penalties for violations of her order. The procedural requirements of Wis. Stat. ch. 227 must be followed because they safeguard all people. ¶4 We do not conclude that Palm was without any power to act in the face of this pandemic. However, Palm must follow the law that is applicable to state-wide emergencies. We further conclude that Palm's order confining all people to their homes, forbidding travel and closing businesses exceeded the statutory authority of Wis. Stat. § 252.02 upon which Palm claims to rely.7 6 This decision does not apply to Section 4. a. of Emergency Order 28. 7 The Legislature's petition included a third issue: "Even if the Department did not violate [Wis. Stat.] § 227.24, whether the Department acted arbitrarily and capriciously in issuing 3 No. 2020AP765-OA I. BACKGROUND ¶5 Although we do not address the Governor's order, we note for purposes of background, that on March 12, 2020, Governor Evers issued Executive Order 72 "Declaring a Health Emergency in Response to the COVID-19 Coronavirus." Order 72: proclaimed that a public health emergency existed in Wisconsin; designated DHS as the lead agency to respond to the emergency; directed DHS to take "all necessary and appropriate measures to prevent and respond to incidents of COVID-19 in the State"; suspended administrative rules that the DHS Secretary thought would interfere with the emergency response and increase the health threat; authorized the Adjutant General to activate the National Guard to assist in responding to the emergency; directed all state agencies to assist in responding to the emergency; proclaimed "that a period of abnormal economic disruption" existed; and directed the Department of Agriculture, Trade, and Consumer Protection to guard against price gauging during the emergency.
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