Overturned Safer-at-Home Order Results in Local Whac-A-Mole

By: Rick Esenberg and Anthony LoCoco

On May 13, the Wisconsin Supreme Court struck down Emergency Order #28, the general shutdown and quarantine order issued by the Department of Health Services (“DHS”) and sometimes referred to as the “Safer at Home Order.” The ruling ushers in what can perhaps be dubbed “Part III” of ongoing governmental attempts to address COVID-19 in Wisconsin: the advent of a patchwork of local-level regulations aimed at controlling the spread of the coronavirus. This piece discusses the legality of these piecemeal measures — spoiler alert: it’s complicated — but it’s useful first to review how we got to where we are.

In Part I, which began in March of this year, Governor Evers issued an earlier iteration of the Safer at Home Order, Emergency Order #12. The Order relied in part on broad but time-limited authority granted him by the legislature to be exercised during public health emergencies. The legislature authorized Governor Evers himself to declare the existence of such an emergency; but under the terms of the grant any declaration could not extend beyond 60 days without the agreement of the legislature. This framework makes perfect sense: it provides the executive branch with the flexibility needed to address quickly-developing exigent circumstances but contains an important check in the form of legislative input once the executive branch has had a chance to find its footing.

That takes us to Part II. With the expiration of Evers’ public health emergency declaration looming in May, DHS needed to determine whether to seek legislative input or, reflecting its lack of emergency powers, adopt a more modest approach to combatting COVID-19. But DHS did neither. Instead, it issued Order #28, which relied solely on those statutory powers delegated to DHS by the legislature, as opposed to the existence of a gubernatorial declaration of a state of emergency, while continuing the widespread closure of businesses, schools and churches. This lead many to question whether DHS was exceeding its authority and ultimately culminated in an interbranch lawsuit filed by the Legislature against the Secretary-Designee of DHS, Andrea Palm.

As mentioned above, that lawsuit was just resolved 4–3 in favor of the Legislature, with two holdings notable here. First, the Supreme Court concluded that Order #28 was in fact not an order at all but instead an administrative rule. That change in nomenclature makes all the difference in the world, because administrative rules are subject to a host of procedural safeguards designed to give the Legislature oversight of the agencies it creates and the public an opportunity to provide input. Because Palm had skipped these steps, the Safer at Home Order was unenforceable. Second, and perhaps anticipating that the Evers administration would simply reissue the same order after following rulemaking procedures, the Court added that the statutory fount of authority on which Palm had relied — Wis. Stat. § 252.02 — did not authorize DHS to issue a blanket order restricting Wisconsinites to their home, closing all non-essential businesses, banning all non-essential travel, and prohibiting most private gatherings.

The Court’s decision brings Wisconsin to Part III — the current state of affairs. Many Wisconsinites no doubt assumed that the Court’s ruling meant an end to widespread shutdowns in the state. But government, like nature, abhors a vacuum. And a number of local governmental units like counties and cities have already begun issuing their own stopgap measures while DHS gets to work promulgating a new rule that complies with rulemaking requirements and the text of § 252.02. So what can be said about these local regulations? Are they legal?

Let’s start with the basics. Like administrative agencies, Wisconsin’s cities and counties are subject to legislative control. Consequently, to discover what these entities may lawfully do, resort must first be had to the Wisconsin Statutes (although cities do receive some authority over local affairs from the state constitution, even that power is generally displaceable by properly-crafted legislative enactments). The reader need not read very far past § 252.02 to find the relevant text. After setting forth DHS’s powers in that provision, the Legislature discusses in § 252.03 the “[d]uties” of “local health officers,” defined to include, among other things, city and county health departments.

Specifically, under Wis. Stat. § 252.03(1)-(2), local health officers are directed to “take all measures necessary to prevent, suppress and control communicable diseases” and are authorized both to “do what is reasonable and necessary for the prevention and suppression of disease” and to “forbid public gatherings when deemed necessary to control outbreaks or epidemics.” At first glance, this appears to be a sweeping grant of power seemingly justifying any number of local restrictions. But Wisconsinites now have the benefit of the Supreme Court’s analysis of strikingly similar language in § 252.02 in Legislature v. Palm. Like local health officers, DHS possesses the power to “control and suppress[] communicable diseases” and to “forbid public gatherings . . . to control outbreaks and epidemics.” Yet we know from the Supreme Court’s decision that this language is insufficient to support widespread shutdowns and restrictions of the type that existed in Order #28.

Thus an important rule is that, all other things being equal, local health authorities likely do not have the authority, post-Legislature v. Palm, to simply reissue Order #28 under their own letterhead. Any such order is bound to meet the same fate as its state-level analogue.

But this rule is subject to at least three significant caveats.

First, local units of government possess an additional source of authority not yet discussed: the ability to declare an emergency “whenever conditions arise by reason of . . . a disaster . . . that impairs . . . critical systems of the local unit of government.” “Disaster” — which is a separately-defined term from “[p]ublic health emergency” — is defined to mean “a severe or prolonged, natural or human-caused, occurrence that threatens or negatively impacts life, health, property, infrastructure, the environment, the security of this state or a portion of this state, or critical systems, including computer, telecommunications, or agricultural systems.” When such an emergency is declared, the local unit possesses the authority to order “whatever is necessary and expedient for the health, safety, protection, and welfare of persons and property within the local unit of government in the emergency and includes the power to bar, restrict, or remove all unnecessary traffic, both vehicular and pedestrian, from the highways.” And, unlike the governor’s emergency declaration, these local declarations last for as long as “the emergency conditions exist or are likely to exist.” Wis. Stat. § 323.14(4).

Although § 323.14(4) powers, like § 252.03 powers, appear to be sweeping, interpreting the broad manner in which they are worded to mean that the local authority can do what it wills would prove too much. For example, even in times of peace cities already possess the “power to act . . . for the health, safety, and welfare of the public.” Reading such provisions literally renders utterly superfluous the more specific, carefully-worded delegations to local units and raises significant constitutional concerns; consequently, a Court is not likely to construe these statutes to represent unlimited wells of power. It must be said, though, that an emergency declaration could well function as a tie-breaker in favor of the local unit.

A second caveat is that, unlike state-wide orders such as Order #28 which take a one-size-fits-all approach, local orders will necessarily be narrower in geographic scope with a much closer fit between the “facts on the ground” and the restrictions the order imposes. Put differently, Milwaukee County can adopt an order closely tailored to meet Milwaukee County’s specific needs and Wood County can adopt an order closely tailored to meet Wood County’s specific needs. In one sense this is a good thing; there’s a reason small-government advocates push for local control. And local control is especially smart for a problem like coronavirus, which has affected different parts of the state with vastly differing levels of intensity. But this also means local units may (if they do things right) be in a much better position to defend their actions in any judicial balancing of government interests and individual liberties.

Third, Legislature v. Palm did not suggest that DHS — and by implication, local health officials — lacks regulatory authority under Chapter 252. Far from it; the Court decided that an in-depth discussion of DHS’ authority was simply unnecessary because Order #28 was so clearly beyond the pale. But the statutory language authorizing these governmental entities to, for example, “forbid public gatherings” must carry some meaning. The conversation over what these provisions authorize — as well as an analysis of the interplay between constitutional rights and shutdown orders, for that matter — has been reserved for future cases.

What all of this means is that any assessment of the legality of a local Safer-at-Home-style order will require fact specific, line-by-line analysis.

Unfortunately, then, Wisconsinites may be stuck playing Whac-a-Mole for the time being with respect to the more egregious exercises of local authority. Our best judgment is that local restrictions may not order those who have not been infected with or exposed to the virus to stay at home. Businesses may not be closed in the absence of evidence that a specific business or (perhaps) class presents a particularized risk. Local efforts must probably be based on an assessment of local risk and not merely the presence of the virus in the state or the country. But the precise contours of local power remain unclear.

Esenberg is president and general counsel and LoCoco is deputy counsel at the Wisconsin Institute for Law & Liberty.



Wisconsin Institute for Law & Liberty

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