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An Evers administration attempt in October to blunt a rising case count of COVID-19 infections should have gone through the state’s rulemaking process, the Wisconsin Supreme Court ruled Wednesday.
The 4-3 decision, written by Chief Justice Patience Roggensack, upheld a lower court ruling, which had cut short an order that the state’s top health officer issued in October. Emergency Order 3 limited occupancy in public places to 25% of capacity.
Gov. Evers directed Andrea Palm, then secretary-designee of the Department of Health Services (DHS), to issue the order in response to a surge in COVID-19 infections. The surge began in August and was driven initially by group gatherings on and near college campuses as students returned for the fall semester; it later peaked in November as the number of new infections with the coronavirus approached 10,000 a day. The order covered a 28-day window, two full 14-day incubation periods for the virus.
After the Tavern League of Wisconsin sued, appeals court justices blocked the order before it was halfway through its duration, and the Evers administration made no attempt to renew it
In her decision Wednesday, Roggensack pointed to the high court’s May 13 ruling that ended the Evers administration’s extension of the spring Safer at Home order early in the pandemic. That 4-3 ruling concluded that Safer at Home — which instructed businesses and residents to minimize movement and gathering except for essential needs — should have been promulgated as an administrative rule with the participation of the state Legislature.
“We conclude that Emergency Order 3 meets the definition of a rule, as we recently explained” in the Safer at Home ruling, Roggensack wrote, and should therefore have been subjected to the rulemaking procedures. “Because it was not, Emergency Order 3 was not validly enacted and was unenforceable.”
Justices Annette Ziegler and Rebecca Bradley joined Roggensack in the opinion. Justice Brian Hagedorn — who had dissented in the Safer at Home opinion in May — wrote his own concurring opinion.
Hagedorn’s concurrence noted his dissent in the Safer at Home case. There he argued that the Safer at Home order was a response to “a specific factual circumstance” and therefore didn’t require rulemaking under the Wisconsin statutes.
In his concurrence Wednesday, Hagedorn called the Safer at Home ruling’s rationale “incomplete” and suggested that in the future “we may need to reconsider some of our conclusions” in that ruling.
But given the earlier decision — and the principle of stare decisis that courts should stand by previous decisions — Hagedorn wrote that “creative efforts to engineer a different result from an indistinguishable set of facts would, in my view, be a departure from basic principles of judicial decision-making.”
With the October capacity limit restriction, “Palm issued another order doing exactly what this court said she may not do: limit public gatherings by statewide order without promulgating a rule,” he wrote.
In a dissent, Justice Ann Walsh Bradley took issue with both Roggensack and Hagedorn. Justices Rebecca Dallet and Jill Karofsky joined in the dissent.
Walsh Bradley wrote that stare decisis “simply does not apply” because the May decision “did not even attempt to interpret” the statute that the administration cited in the October order. That statute authorizes DHS to “close schools and forbid public gatherings in schools, churches, and other places to control outbreaks and epidemics.”
Roggensack’s opinion ignores “the plain language of the statute that gives DHS the authority to forbid public gatherings,” Walsh Bradley wrote, and instead “contrives a roadblock that is not part of the statute, and forces DHS to go through a cumbersome rulemaking procedure.”
Wednesday’s ruling joins two previous rulings in drawing narrower boundaries around the public health powers of the state government.
Besides the May Safer at Home ruling, the court held in a March 31 ruling — again on a 4-3 decision, this one written by Hagedorn — that a governor could not issue more than one 60-day emergency declaration to respond to a crisis such as the COVID-19 pandemic.
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