Court: Wisconsin Supreme Court
Appeal No: 2020AP1742
Status: Case Closed
WMC Involvement: Amicus
This case challenged a statewide emergency order purporting to place capacity limits on certain businesses. Following some procedural wrangling at the circuit court, the court of appeals ordered the circuit court to issue an injunction against enforcement of the emergency order. The state appealed to the Wisconsin Supreme Court.
While this case was pending, the legislature convened the Joint Committee for Review of Administrative Rules and determined that the emergency order was a “rule” and required the state to promulgate the emergency order as a rule, in accordance with chapter 227, within 30 days. The state ignored the legislature’s commands.
WMC submitted a brief to weigh in on some of the important separation-of-powers issues present in this case. Our brief argued that because agencies are creations of the legislature and have been delegated certain legislative powers in the form of rulemaking, courts should defer to the legislature’s determinations as to whether agency actions rise to the level of rulemaking or not.
Oral arguments were held on December 17, 2020. The Wisconsin Supreme Court affirmed the court of appeals’ decision, concluding that the emergency order was unlawful.