Wisconsin Supreme Court Strikes Down Safer at Home Order

Attorneys Jordan K. Lamb and Wes Webendorfer, DeWitt LLP

On May 13, 2020, the Supreme Court of Wisconsin issued a decision declaring Emergency Order #28 Safer at Home Order (“Safer at Home”) “unlawful, invalid, and unenforceable.” The Safer at Home Order was issued by the Wisconsin Department of Health Services Secretary-designee, Andrea Palm, and had extended Wisconsin’s Order through May 26, 2020. In its decision, the Court ordered that “there can be no criminal penalties for violations of [the] order.”

The result is that, at this time, in areas where no local government order is effective, the Supreme Court’s decision means businesses may open. However, the best practice for businesses choosing to open is to adhere to the Wisconsin Economic Development Commission’s Reopening Guidelines, which compile industry-specific advice for protecting the health and safety of employees and the public.

Further, the Court’s decision does not apply to Safer at Home’s closures of public and private K-12 schools. Therefore, all schools remain closed except for distance learning and virtual learning.

As indicated above, local governments have the power to issue their own orders closing businesses, limiting travel, and imposing other restrictions. The following local governments have already issued such orders and advisory guidelines:

• Madison and Dane County Public Health issued an Order adopting all provisions of the Safer at Home Order until 8:00 a.m. on Tuesday, May 26, 2020.
• The City of Milwaukee’s “Stay-at-Home” Order that was originally issued March 25, 2020, remains in effect until rescinded or modified by the Milwaukee Health Commissioner. The City of Milwaukee is currently working with nearby local governments in Milwaukee County on separate requirements for how businesses may be able to reopen.
• Brown County issued an Order adopting the provisions of Safer at Home until May 20, 2020.
• Rock County has issued a public health Order adopting the provisions of the state Safer at Home Order until 8:00 a.m. on Tuesday, May 26.
• The City of Racine has issued an Order adopting the state Safer at Home Order until May 26, 2020.

Because we expect counties to continue to make individual decisions, we suggest that you check your county or municipal health department’s website to determine if orders are in place in your area.  You should continue to monitor the actions of those departments in the event any revised or additional orders are issued.

In accordance with the Supreme Court’s decision, Governor Evers has indicated that his administration will soon issue the framework for an emergency administrative rule to establish new state-level regulations to respond to COVID-19. The process to finalize and begin enforcement of an emergency rule may take several weeks and must involve the State Legislature.

If you have specific questions about the impact to your business of the Supreme Court’s decision or requirements of a local order, please contact Government Relations Practice Group Chair, Jordan K. Lamb at (608) 252-9358 or [email protected]