Wisconsin Stay-at-home order

On May 13, 2020 The Wisconsin Supreme Court (the Court) issued their order, or ruling, for the case Wisconsin Legislature v. Secretary-Designee Andrea Palm, Julie Willems Van Dijk and Lisa Olson, In Their Official Capacities As Executives of Wisconsin Department of Health Services. What made news about this case is that the Court not only overturned a stay-at-home “order” during a pandemic, but the political pundits kept talking about the political undertones and issues between non-elected public positions and elected politicians. However, in reading the 161 pages of the ruling what this lawyer noticed was that the Court focused on the fact that Ms. Palm wrote and enacted a “rule” rather than an “order” as she claimed it was.  This is a great example of a legal technicality that matter. Now, there were other items to note, such as this is a case that was largely decided by statute instead of case rulings; that even judges sometimes forget that The Supreme Court of the United States (SCOTUS) cannot over turn rulings without a case; and that judges sometimes like to add extra information or comments and these comments can be longer than ruling.

The 161 page ruling is roughly 32 pages of the court’s unanimous opinion and 120+ pages of each judge adding their comments about the case.  The ruling is important for the legal technicality of defining a rule vs. an order and how just because Ms. Palm called the stay-at-home “order” an order she actually created a rule and did not follow the proper procedure for creating a rule. People complain about legal technicalities, especially in criminal cases, but this case is a great example of why legal technicalities really do matter. Ms. Palm in her role as head of the Department of Health Services (DHS) issued an “order” that during the COVID-19 pandemic required people to stay in their homes unless it was “essential” and if they did not do so they could face 30 days of imprisonment a $250 fine or both. The Court determined that by making the “order” have criminal consequences, imprisonment, this was not an order but was a “rule” and as such Ms. Palm did not follow the appropriate method to get the rule approved.  This difference was largely what the decision was about, and distinguished the ways that these two legal definitions in Wisconsin are different and how the procedure to get a rule approved is different than getting an order approved.  The opinion did a great job at legally explaining that just because you call something a duck does not make it a duck.

The Court explained that procedural requirements (aka legal technicalities) must be followed, because they safeguard everyone. The Wisconsin Legislature put procedural requirements in place starting when the state constitution was formed, to help protect the rights of all residents of Wisconsin. The Court recognized that Ms. Palm and DHS had authority to act in order to protect people during an emergency, however Ms. Palm and DHS still had to follow proper procedure to make sure that the rights of Wisconsin residents were protected. The Wisconsin Legislature challenged the “order” because it infringed on their constitutional power, and that is what gave them standing to do so. To challenge a law, the person or group challenging the law must have standing, meaning they must be impacted in a negative manner because of the law or rule. The criteria that the Court used to review if the “order” was an order or a rule did include some cases, but the bulk of the decision was based on Wisconsin State Statutes.

Side Note: Interestingly, the Court had already decided what makes something a rule vs. an order in two previous cases and Ms. Palm did not address those in her argument to the Court about why the stay-at-home “order” she issued was an order and not a rule. In law school students are taught that when you have precedent against you, identify every possibly way that your situation is different than the precedent, you do not ignore it and not address it at all.  By not addressing or acknowledging this Ms. Palm and DHS made a major error and almost assured that the “order” would be found to be a rule. Again the Court found a great legal way to say just because you call something a duck does not make it a duck.

While it is easy to listen to the political pundits and news anchors give blurbs on what happened in this case (or any case) this lawyer encourages you to try and find the actual opinion and read it yourself to have a better understanding of the case, the ruling, and maybe learn more about the law of your state.


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