Authored by: Dean R. Dietrich
The Wisconsin Supreme Court finished its oral argument session in the lawsuit by the Legislature challenging the issuance of Emergency Order #28 by the Secretary-Designee of the Department of Health Services (DHS). This Emergency Order is an extension of the Emergency Order #12 issued by the Governor which expires on or about May 12. Emergency Order #28 continues many of the requirements previously incorporated in Emergency Order #12 regarding the closing of schools and the closing of non-essential businesses except providing for limited curbside services.
The argument before the Supreme Court was heated and ran for almost two hours. The primary argument of the Legislature was that the Emergency Order constituted a “rule” that needed to be approved by the Legislature through an established process of legislative review. The primary argument of the Governor was that the Emergency Order was properly authorized under State Statutes and necessary to address the Pandemic crisis faced by the entire State.
One of the more hotly debated questions before the Court was whether the State Statutes authorized a single person (the Secretary-Designee of the Department of Health Services) to issue rules and regulations that could result in criminal penalties for persons who violated the Order. The Supreme Court focused significantly upon what was the proper degree of authority granted to the Secretary-Designee even in this Pandemic crisis setting.
We anticipate that the Supreme Court will render a decision by the end of this week or perhaps next Monday. It is clear that the Supreme Court majority is troubled by the breadth of the Emergency Order that was issued by the Secretary-Designee.
We will keep you advised about developments.
Dean R. Dietrich
