Why This Case Matters
Under Wisconsin law, to issue an order of general application with force of law, agencies must go through rulemaking—and in times of emergency, this includes emergency rulemaking. The Wisconsin Department of Health (DHS)’s secretary Andrea Palm released an order limiting businesses’ total occupancy limit without first going through any rulemaking process.
Background
- On Oct. 6, DHS issued new restrictions on public gatherings, limiting businesses to 25 percent the total occupancy limit (Emergency Order #3). If there is no local occupancy limit, the total (employees and customers) cannot exceed ten. It was effective October 8 and expires Nov. 6, 2020.
- On Oct. 12, pursuant to Wis. Stat. § 227.26(2)(b), the Joint Committee for Review of Administrative Rules (JCRAR) voted determined that EO #3 was a statement of policy or interpretation of a statute that meets the definition of a rule under Wis. Stat. § 227.01(13) and directed the DHS to promulgate the policy statements and interpretations of Wis. Stat. § 252.02(3) as an emergency rule. DHS has 30 days (Nov. 11, 2020) to comply with JCRAR’s directive that so far is being dismissed by Evers and DHS.
- In part, JCRAR relied upon LRB’s Oct. 7 memo to Speaker Vos finding “Palm would likely require Emergency Order #3 . . .to be promulgated as a rule.”
- On Oct. 7, Majority Leader Fitzgerald and Speaker Vos delivered a letter to Sec. Palm, explaining that, under Palm, EO #3 was a rule.
- In an Oct. 8 memo to Minority Leader Bewley, LRB opined that EO #3 would remain in effect until it expires, or a court enjoins DHS from enforcing it.
- On October 13, the Wisconsin Tavern League sued Sec. Palm and requested a preliminary injunction from enforcement of EO #3. (Sawyer County Case Number 2020CV000128)
- Although noting JCRAR’s action, the Tavern League brief did not note of any legal significance of that action.
- The court granted the temporary injunction on Oct. 14, but another judge reversed that ex parte order and denied the injunction on Oct. 19.
- DHS filed a brief in opposition on Oct. 16.
- Court of Appeals
- On Oct. 20, Mix-up/Pro-Life filed a motion for temporary injunction pending appeal at District III. Their brief, as in circuit court, focused on Palm and rulemaking with incidental reference to JCRAR’s actions. They request a ruling by Friday, Oct. 23, 2020.
- On Oct. 27, Mix-up/Pro-Life filed their opening brief.
- On Oct. 29, Palm filed her response brief.
- On Oct. 30, Mix-up/Pro-Life filed a reply brief.
- On Nov. 6, the Court of Appeals granted the temporary injunction.
- Supreme Court
- On Nov. 10, Palm/DHS petitioned for review at the Supreme Court.
- On Nov. 16, Mix-up/Pro-Life filed their response to petition for review.
- On Nov. 18, the Supreme Court ordered both parties to brief the issue.
- On Nov. 24, Palm/DHS filed their opening brief.
- Mix-up/Pro-Life’s response brief is due on Dec. 1st.
- Amicus Briefs are due by Dec. 2nd.
- Palm/DHS reply brief is due on Dec. 3rd.
- Oral arguments are scheduled for 9:45am on Monday, December 14, 2020.
Early Analysis
The plaintiffs bringing the case compare it to a Wisconsin Supreme Court decision this past May (Wisconsin Legislature v. Palm) where the Wisconsin Supreme Court ruled that DHS did not possess the explicit authority to issue a state-wide lockdown and, even if they did, that they would need to go through emergency rulemaking to enact it. DHS claims that Order #3 reflects a power “left over” by the court’s decision and that it falls outside of emergency rulemaking.
While DHS might find a more favorable court for their arguments this time (Justice Hagedorn did not side with the majority in the May decision), JCRAR’s actions provide an important factual distinction between the two cases.
As noted, JCRAR voted on October 12 to require DHS to promogulated Order #3 as an Emergency Rule. DHS has 30 days to comply with the order. JCRAR’s authority is clear:
(2) Review of rules by committee.
(a) Purpose. The joint committee for review of administrative rules shall promote adequate and proper rules, statements of general policy and interpretations of statutes by agencies and an understanding upon the part of the public respecting the rules, statements and interpretations.
(b) Requirement for promulgation. If the committee determines that a statement of policy or an interpretation of a statute meets the definition of a rule, it may direct the agency to promulgate the statement or interpretation as an emergency rule under s. 227.24 (1) (a) within 30 days after the committee’s action. 227.26(2)(b).
The JCRAR component could makes this a significant separation of powers and agency authority case, besides the underlying emergency rulemaking debate.
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