Here's the decision in WI Legislature v. Palm. The WI Supreme Court has invalidated the state's stay-at-home order and closure of non-essential business on both grounds asserted by the legislature.
http://fox11digital.com/news/PDFs/WI%20Supreme%20Court%20decision.pdf
On the administrative law question, the court held that WI DHS Secretary Andrea Palm's order is a "rule" under the meaning of a state statute and therefore could only be promulgated following rulemaking procedures.
Palm's order did not rely on the governor's emergency powers, but the court discusses the time-limited nature of emergency powers under WI law...
"the Governor's emergency powers are premised on the inability to secure legislative approval given the nature of the emergency. E.g., if a forest fire breaks out, there is no time for debate. Action is needed. The Governor could declare an emergency & respond accordingly..."
"But in the case of a pandemic, which lasts month after month, the Governor cannot rely on emergency powers
indefinitely." Court notes orders under Governor's emergency powers would be limited to 60 days under WI law.
Instead of relying on (time-limited) emergency powers given by the legislature to the governor, WI's stay-at-home order relied on general disease control authorities granted to the state secretary of health, Palm.
WI S.Ct. says DHS Secretary's communicable disease control powers (unlike the Governor's time-limited emergency response powers) may only be exercised pursuant to the processes dictated by state law for rule-making.
The court also finds that even if Palm had used rule-making process, the grant of authority to the DHS Secretary in WI's communicable disease control statute does not encompass stay-at-home order, business closure, & travel restrictions.
The administrative law question is quite specific to WI law and to the powers the WI Governor and DHS Secretary chose to rely on in issuing their order. Even if the court's decision in this case were persuasive to courts in other states, the legal issues are state-specific... BUT
The statutory interpretation question is less specific to WI law & has been raised in other states, e.g., Illinois. I'd like to think other courts will find the reasoning in Legislature v. Palm unpersuasive on the question of whether stay at home orders are legal quarantines...
As I've written before, although SAH orders are widely referred to as "quarantines" in lay terms, the legal definition of quarantine is more narrow - it refers to strict orders for individuals infected or suspected of being exposed to stay home at all times.
SAH orders are issued pursuant to broader grants of authority to respond to emergencies or control the spread of communicable disease.
The stat. interpretation Q matters b/c although legal quarantines are authorized by law & pass constitutional muster under certain circumstances, the statutory (& possibly constitutional) requirements that apply to quarantine would be infeasible for general population SAH orders.
Quarantine orders in the narrow statutory sense are often subject to procedural protections (right to hearing, to hear medical evidence presented against the subject of quarantine, legal representation, etc.) by statute & those protections may also be constitutionally required.
Legal quarantines may also require an individualized assessment of the risk of transmission presented by the quarantined individual (e.g., an assessment of whether they are likely to be contagious & unlikely to comply voluntarily).
For these reasons, state officials (including Palm) have said they are *not* relying on their legal quarantine authorities to issue orders mandating that the general population stay at home.
I'm really sorry for not numbering these. I'm so, so tired. I went for a beautiful long walk w/ my youngest kiddo filled with flowers and birds and lovely art neighbors have painted on rocks and tacked to utility poles and then came home to this decision. So... no numbers.
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