When Madison & Dane County’s public health department’s indefinitely closed all in-person, public and private schools for grades 3-12, concerned parents took them to court. The case immediately went before the Wisconsin Supreme Court where justices issued a temporary order suspending the school closure. While the case goes through briefing with oral arguments scheduled to occur in December, the explicit authority tension remains as important as ever.
Under Wis. Stat. § 227.10(2m), administrative agencies only have authority when the Wisconsin Legislature explicitly grants it to them. That is why this past May, in Wisconsin Legislature v. Palm, the Wisconsin Supreme Court held that the Department of Health Services could not issue emergency health orders beyond what the legislature explicitly granted them in the enabling legislation.
While the court did not specifically name Wis. Stat. § 227.10(2m) in its decision to suspend the order closing schools, the explicit authority requirement was certainly in evidence, with the court point out that the Department of Health Services had statutory authority to close schools, but:
“The powers and duties entrusted to local health officers, however, are different.” And in this case, “the explicit power to ‘close schools’ is statutorily absent.”
And again even in the dissent:
“The majority correctly points out that DHS has the explicit statutory authority to close schools under Wis. Stat. § 252.02(3).”
The Wisconsin Supreme Court is starting to get it: in order for an administrative agency to act, it must have explicit authority.