WISCONSIN SUPREME COURT STRIKES DOWN STATEWIDE “SAFER AT HOME” ORDER

Safer at Home Order Invalidated. Yesterday, May 13, 2020, the Wisconsin Supreme Court, in a 4-3 decision (the “Decision”), struck down Wisconsin’s current “Safer at Home” Order. The majority of the Court concluded that the Secretary of the Department of Health Services (“DHS”) exceeded her statutory authority by ordering all state residents to stay at home and ordering all businesses to close, with certain defined exceptions, and subjecting violators to potential criminal penalties.

Effective Immediately. The Decision is effective immediately – the Court’s mandate states that the Order is “unlawful, invalid, and unenforceable.”

No Stay. The Legislature, which brought the case, had asked the Court to stay the effective date of any decision invalidating the Safer at Home Order to allow the state to decide what, if any, alternative restrictions could be put in its place in response to the COVID-19 pandemic. By declining to do so, the Court majority effectively issued a mandate that neither party asked for, leaving Wisconsin with no statewide order regarding COVID-19.

Businesses Can Open Immediately. As a result, unless a Wisconsin municipality or county has issued its own order restricting activities as a result of the pandemic, individuals may leave their homes for any reason and gather in groups of any amount, and businesses may open for any and all respects. The one exception in the Decision is for school closures – the Court left that portion of the Safer at Home Order in place.

Local Restrictions – Milwaukee, Racine, Dane County and Brown County. At the present time, the Cities of Milwaukee and Racine, Dane County and Brown County have enacted their own versions of Safer at Home, which are not impacted by the Decision. Individuals and businesses within these municipalities should review and continue to abide by those orders.

Replacement Restrictions May be Forthcoming. Individuals and businesses which are not subject to any municipal or county order should act with caution before participating in large gatherings or resuming business as usual. In refusing to stay its Decision, the Supreme Court stated:

[W]e trust that the Legislature and [DHS Secretary] Palm have placed the interests of the people of Wisconsin first and have been working together in good faith to establish a lawful rule that addresses COVID-19 and its devastating effects on Wisconsin. People, businesses and other institutions need to know how to proceed and what is expected of them. Therefore, we place the responsibility for this future law-making with the Legislature and DHS where it belongs.

The Decision acknowledges DHS and the Legislature have the authority through joint rulemaking to impose proper restrictions during the pandemic, and further that the Decision does not involve “Governor Evers’ Emergency Order or the powers of the Governor.” Accordingly, some form of negotiated replacement rule or guidance may be forthcoming.

FOS Can Help. If you have any questions about the current status of COVID-19 restrictions affecting you or your business, FOS stands ready to help.

Be well.