Wisconsin Supreme Court Strikes Down State’s COVID-19 Stay-at-Home Order; Declines Transition Period

On Wednesday May 13, 2020, the Wisconsin Supreme Court struck down Wisconsin’s COVID-19 stay-at-home order in a 4-3 decision (see page 31-32 of the court’s opinion). The stay-at-home order — Emergency Order 28 — had been issued Wisconsin Department of Health and Human Services Secretary Designee Andrea Palm on March 24, 2020.

Although the legislature had requested that the court delay any order by a week to provide time for new transition rules, the court declined saying:

‘We have declared rights under the law wherein we have concluded that Emergency Order 28 is invalid and therefore, unenforceable. Although a very unusual request, on April 21, 2020, the Legislature asked this court to issue a temporary injunction of Emergency Order 28 but then requested a stay of that injunction for at least six days. We perceive this request as being grounded in a concern for an orderly transition from Order 28 to a lawful rule.
However, more than two weeks have passed since we began our consideration of this case. Therefore, we trust that the Legislature and Palm have placed the interests of the people of Wisconsin first and have been working together in good faith to establish a lawful rule that addresses COVID-19 and its devastating effects on Wisconsin. People, businesses and other institutions need to know how to proceed and what is expected of them. Therefore, we place the responsibility for this future law-making with the Legislature and DHS where it belongs.” (At pages 30-31) (Emphasis added).

Without a delay period, the court’s decision immediately lifted the state-wide restrictions. Businesses, however, continue to face any local limits and stay-at-home orders, such as those imposed by Milwaukee. But some bars opened immediately on Wednesday after the court’s decision.