Wisconsin Supreme Court Rules Safer at Home Order Unconstitutional

14 May 2020 Coronavirus Resource Center:Back to Business Blog

The Wisconsin Supreme Court ruled yesterday that Emergency Order 28, the current version of Wisconsin’s “Safer at Home” order, is “unlawful, invalid, and unenforceable” because the governor’s office exceeded its emergency rulemaking power.  The court concluded that the order’s directions “confining all people to their homes, forbidding travel and closing businesses exceeded the statutory authority of” Wisconsin Department of Health and Services Secretary-designee Andrea Palm.  Accordingly, “there can be no criminal penalties for violations of [the] order.”  

The immediate consequences of the decision are unclear.  Though four of the seven justices ruled that the rule is unconstitutional and cannot be enforced, Chief Justice Patience Roggensack (one of the justices in the majority) also concluded, “although our declaration of rights is effective immediately, I would stay future actions to enforce our decision until May 20, 2020.”  

However, if the Safer at Home order is unenforceable and not immediately replaced by another order, it is not clear what further legal “actions” would be forthcoming.  The governor’s office has taken the position that the stay-at-home order is immediately ineffective.  Nevertheless, any business seeking to take actions prohibited by the Safer at Home order are advised to seek legal advice.  In addition to any state orders, Wisconsin local units of government are poised to issue orders filling in gaps in their jurisdictions.

In all events, the court has encouraged the Governor and the Legislature to work together to craft a new order in compliance with Wisconsin’s Constitution and statutes.  Should any revised order be released, we will provide immediate analysis.

For more information, please contact your Foley relationship partner or the author listed below. Foley has created a multi-disciplinary and multi-jurisdictional team, which has prepared a wealth of topical client resources and is prepared to help our clients meet the legal and business challenges that the coronavirus outbreak is creating for stakeholders across a range of industries. Click here for Foley’s Coronavirus Resource Center to stay apprised of relevant developments, insights and resources to support your business during this challenging time. To receive this content directly in your inbox, click here and submit the form. 

This blog is made available by Foley & Lardner LLP (“Foley” or “the Firm”) for informational purposes only. It is not meant to convey the Firm’s legal position on behalf of any client, nor is it intended to convey specific legal advice. Any opinions expressed in this article do not necessarily reflect the views of Foley & Lardner LLP, its partners, or its clients. Accordingly, do not act upon this information without seeking counsel from a licensed attorney. This blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship. Communicating with Foley through this website by email, blog post, or otherwise, does not create an attorney-client relationship for any legal matter. Therefore, any communication or material you transmit to Foley through this blog, whether by email, blog post or any other manner, will not be treated as confidential or proprietary. The information on this blog is published “AS IS” and is not guaranteed to be complete, accurate, and or up-to-date. Foley makes no representations or warranties of any kind, express or implied, as to the operation or content of the site. Foley expressly disclaims all other guarantees, warranties, conditions and representations of any kind, either express or implied, whether arising under any statute, law, commercial use or otherwise, including implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Foley or any of its partners, officers, employees, agents or affiliates be liable, directly or indirectly, under any theory of law (contract, tort, negligence or otherwise), to you or anyone else, for any claims, losses or damages, direct, indirect special, incidental, punitive or consequential, resulting from or occasioned by the creation, use of or reliance on this site (including information and other content) or any third party websites or the information, resources or material accessed through any such websites. In some jurisdictions, the contents of this blog may be considered Attorney Advertising. If applicable, please note that prior results do not guarantee a similar outcome. Photographs are for dramatization purposes only and may include models. Likenesses do not necessarily imply current client, partnership or employee status.

Related Services