Wisconsin Legislature v. Secretary Palm: Reinforcing Rulemaking Procedures in Public Health Emergencies

Wisconsin Legislature v. Secretary Palm: Reinforcing Rulemaking Procedures in Public Health Emergencies

Introduction

In the landmark case of Wisconsin Legislature v. Secretary Palm, the Wisconsin Supreme Court addressed pivotal issues concerning the scope of executive authority during public health emergencies and the adherence to statutory rulemaking procedures. The case revolved around Emergency Order 28, issued by Secretary-designee Andrea Palm of the Wisconsin Department of Health Services (DHS), which mandated statewide lockdown measures in response to the COVID-19 pandemic. The Wisconsin Legislature challenged the order, asserting that it was an unconstitutional overreach of DHS's authority and failed to comply with the mandatory emergency rulemaking procedures outlined in Wisconsin Statutes.

Summary of the Judgment

On May 13, 2020, the Wisconsin Supreme Court ruled decisively against Emergency Order 28, declaring it unlawful, invalid, and unenforceable. The court concluded that Order 28 constituted a "rule" under Wisconsin Statutes §227.01(13) because it was a general order of general application affecting all individuals and businesses statewide. Consequently, the order was subject to the emergency rulemaking procedures mandated by §227.24, which DHS had failed to follow. Additionally, the court found that even if rulemaking had not been required, Order 28 exceeded DHS's statutory authority under §252.02. The judgment underscored the necessity for administrative agencies to adhere strictly to legislative procedures when exercising broad powers, especially during emergencies.

Analysis

Precedents Cited

The court's decision heavily relied on established precedents, notably:

  • CITIZENS FOR SENSIBLE ZONING, INC. v. DNR (1979): This case clarified that a general order of general application qualifies as a "rule" under §227.01(13) if it governs a broad class of individuals and entities.
  • Cholvin v. DHFS (2008): Demonstrated that directives applicable to all members of a defined class, with the capacity to include new members, align with the definition of a general rule.

Legal Reasoning

The court meticulously dissected the statutory definitions to determine the nature of Emergency Order 28:

  • Definition of a Rule: Under §227.01(13), a "rule" is a regulation, standard, statement of policy, or general order of general application with the force of law, issued by an agency to implement, interpret, or enforce specific legislation.
  • General Order of General Application: The court held that Order 28, affecting all individuals and businesses in Wisconsin, fits this definition. Unlike person-specific orders, general orders apply to all or specified parts of the state and are not confined to a particular situation.
  • Rulemaking Procedures: §227.24 mandates that emergency rules undergo a specific rulemaking process, including drafting scope statements, publication, and legislative review. DHS failed to comply with these procedures, rendering Order 28 unenforceable.
  • Exceeding Statutory Authority: Even if Order 28 were not a rule, the court found that it surpassed DHS's authority under §252.02 by imposing broad restrictions without sufficient legislative backing.

Impact

This judgment has far-reaching implications for administrative law and executive authority in Wisconsin:

  • Adherence to Legislative Procedures: Reinforces the necessity for agencies to follow prescribed rulemaking procedures, ensuring transparency and legislative oversight, even during crises.
  • Checks on Executive Power: Highlights judicial oversight as a critical check against potential overreach by executive agencies, safeguarding individual liberties.
  • Future Public Health Orders: Sets a clear precedent that public health directives affecting the entire state must undergo proper rulemaking processes to be enforceable, preventing arbitrary or unilateral executive actions.

Complex Concepts Simplified

Administrative Rule

An administrative rule is a directive issued by a government agency that has the force of law. These rules help implement and enforce statutes passed by the legislature. They must follow specific processes, including public notice and opportunities for input, to ensure they are fair and transparent.

General Order of General Application

This refers to a command issued by an agency that applies broadly to a large group of people or entities across the state. Unlike specific orders targeting individual cases, general orders set nationwide or statewide standards and policies.

Separation of Powers

A constitutional principle dividing government responsibilities into three branches: legislative (makes laws), executive (enforces laws), and judicial (interprets laws). Each branch has distinct powers and can check the others to prevent any single branch from becoming too powerful.

Non-Delegation Doctrine

A constitutional principle that prohibits the legislative branch from delegating its lawmaking authority to other branches or agencies without clear guidelines. This ensures that elected representatives retain control over creating laws, maintaining accountability.

Conclusion

The Wisconsin Supreme Court's ruling in Wisconsin Legislature v. Secretary Palm serves as a critical reminder of the importance of procedural compliance and the separation of powers within state governance. By deeming Emergency Order 28 unenforceable due to noncompliance with rulemaking procedures and overstepping statutory authority, the court has reinforced the boundaries within which administrative agencies must operate. This decision not only upholds the legislative intent of Wisconsin's statutes but also ensures that executive actions remain transparent, accountable, and subject to appropriate checks during both ordinary and extraordinary times.

Moving forward, state agencies in Wisconsin must diligently follow established procedures when issuing directives that carry the force of law, especially in public health emergencies. This adherence not only aligns with statutory requirements but also protects the liberties of individuals by ensuring that broad governmental powers are exercised responsibly and lawfully.

Case Details

Year: 2020
Court: STATE OF WISCONSIN IN SUPREME COURT

Judge(s)

PATIENCE DRAKE ROGGENSACK, C.J.

Attorney(S)

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 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. 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.

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