On April 16, Gov. Tony Evers directed Department of Health Services Secretary-designee Andrea Palm to extend Wisconsin’s Safer at Home Order to May 26 under Emergency Order #28. Less than a week later, the Republican-led Wisconsin Legislature filed a lawsuit challenging DHS’s authority to issue such an order.

DHS issued the order under Wis. Stat. §§ 252.02(3), (4), and (6), which allow the secretary to “close schools and forbid public gatherings in schools, churches and other places,” “promulgate and enforce rules or orders,” and “authorize and implement all emergency measures” to control communicable diseases, epidemics and outbreaks like COVID-19.

The Legislature’s lawsuit alleges that, even given this statutory authority:

• The Emergency Order is a “rule” under Wisconsin rulemaking statutes (Wis. Stat. Ch. 227) and should have gone through the statutory emergency rulemaking process, which allows for legislative oversight and public input.
• Even if the order does not violate Wisconsin rulemaking laws, the content of the order exceeds DHS’s authority under those statutes.
• DHS acted arbitrarily and capriciously in issuing the order because it did not provide a reasoned basis for distinguishing between essential and nonessential businesses.

The Legislature is asking the court for a temporary injunction of the Emergency Order, but suggests the court give DHS six days of lead time to promulgate an emergency rule to lawfully enforce the order. The intent of the six day stay request is to ensure the state is not without protective measures against COVID-19 and to continue mitigation of the public health risk, but still ensure that DHS is acting within its authority under the law.

The Legislature filed the action at the Wisconsin Supreme Court. DHS filed their response on April 28. Then, the Legislature will have until April 30 to respond before the court makes a decision.

As of right now, the Emergency Order extending Safer at Home is still in effect.