The state supreme-court decision strikes a blow for separation of powers.

NRPLUS MEMBER ARTICLE

W
hile several federal courts have recently issued decisions addressing the constitutionality of various stay-at-home orders, few state courts have done so. That changed late yesterday, when the Supreme Court of Wisconsin issued its much-anticipated decision in the state legislature’s challenge to Democratic governor Tony Evers’s “safer-at-home” emergency order, issued by his designee for secretary of the Department of Health Services (“DHS”), Andrea Palm. Every Wisconsinite has suddenly become interested in administrative law and the workings of the high court. It is a beautiful thing.

The decision found the order immediately unenforceable. The governor responded by arguing that the Republican legislature now owns the “chaos.” In fact, what will likely follow is an orderly emergency rule-making process whereby DHS and the legislature will be forced to work in concert to establish legal guidelines for managing the reopening process. As with many Supreme Court decisions, while the concurrences and dissents contain the rhetorical mortar fire, the majority opinion, which garnered four out of seven votes, contained eight key takeaways.

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No. 1. The case was really about separation of powers. In a state that has experienced a partisan divide like almost none other over the last decade, the impact of divided government following Governor Scott Walker’s 2018 loss continues to reverberate. Many would argue that the court’s renewed focus on clearly establishing constitutional lines of responsibility between the executive and the legislative branches is a much-needed development. This decision should be viewed alongside the 2018 Tetra Tech decision, which did away with automatic agency deference, as a reestablishment of the proper constitutional order:

The crux of the Legislature’s claims is that Emergency Order 28 was promulgated without following required statutory procedures applicable to an emergency, and in so doing, Palm impinged upon the Legislature’s constitutional core power and its functions under Wis. Stat. §§ 227.24 and 227.26. The Legislature’s claim is grounded in the concept of separation of powers that is inherent in the Wisconsin Constitution.

No. 2. Was Executive Order 28, the stay-at-home order, a rule or an order? The court found emphatically that the “order” was in fact a rule and therefore it should have gone through the rulemaking process, or at least the emergency rulemaking process. Emergency rulemaking expedites the normal notice and comment requirements under the state version of the Administrative Procedure Act. Lest one think the definition of “rule” is too onerous, there are 72 different exemptions under Wisconsin law for various actions that do not require rulemaking.

We conclude that Order 28 is a “general order of general application.” . . .  If we were to read the definition of “Rule” as Palm suggests, one person, Palm, an unelected official, could create law applicable to all people during the course of COVID-19 and subject people to imprisonment when they disobeyed her order.

No. 3. The Court employed the “constitutional doubt” principle — it disfavored statutory interpretations that unnecessarily raise serious constitutional questions about the statute under review. In other words, the court attempted to avoid jumping to the most extreme framing of the issue to avoid a complete gutting of the statute in question.

We do not construe § 252.02(6) as an “open-ended grant” of police powers to an unconfirmed cabinet secretary.

The people consent to the Legislature making laws because they have faith that the procedural hurdles required to pass legislation limit the ability of the Legislature to infringe on their rights.

No. 4. The court made clear that, while the legislature may delegate authority to agencies, it may do so only if there are “adequate standards for conducting the allocated power.” Again, this decision continues a clear trend, both in Wisconsin and elsewhere throughout the country, of courts’ reasserting the prerogatives of both the judiciary to review the legality and constitutionality of administrative actions and the legislature to employ robust tools for reining in administrative agencies that have flexed too much policy-making muscle.

Palm cannot point to any procedural safeguards on the power she claims. At oral argument, she continuously referenced judicial review; but judicial review takes place after an allegation is made that an individual’s rights have been violated. . . . Rulemaking provides the ascertainable standards that hinder arbitrary or oppressive conduct by an agency. Judicial review does not prevent oppressive conduct from initially occurring.

No. 5. It should come as no surprise that the images of law enforcement issuing warnings, and in some cases citations, to business owners trying to survive and to mothers allowing children to play with friends shocked many Wisconsinites. And the court seemed to agree by specifically finding that the issuance of criminal penalties can attach only to rules, and that therefore DHS was in error for attaching criminal penalties to an order that bypassed the administrative rulemaking process.

It has long been the law in Wisconsin that in order for the violation of an administrative agency’s directive to constitute a crime, the directive must have been properly promulgated as a rule.

Palm asserts that Order 28 is not a rule, yet she also asserts Wis. Stat. § 252.25 endows her with the power to create criminal penalties for violations of Order 28.

No. 6. While not necessarily serving as a key basis for the decision, the court drew a distinction between emergencies requiring immediate response and pandemics, which can last for months. Those trying to spin the decision as having gutted the governor’s ability to directly address emergencies misread the outcome.

If a forest fire breaks out, there is no time for debate. Action is needed. The Governor could declare an emergency and respond accordingly. But in the case of a pandemic, which lasts month after month, the Governor cannot rely on emergency powers indefinitely.

No. 7. While the Court focused intently on the nature of the order, finding that it was in fact a rule, it did not ignore the DHS arguments that the authority provided it under Chapter 252 was broad and, some would argue, nearly limitless. This struck many observers as not possible. Remember, the governor’s original executive order, declaring the public-health emergency and directing DHS to act as the lead agency for managing the pandemic, was not at issue in the case. Under Chapter 323, such orders expire after 60 days unless extended by joint resolution of the legislature. Because the legislature did not pass, or even consider, such a joint resolution, the governor’s executive order expired in the second week of May. So how much authority does an unelected and unconfirmed DHS secretary have under Chapter 252? Is it constitutional for an unelected and unconfirmed secretary to essentially have limitless authority, with no legislative oversight, while the popularly elected governor can only issue an order that runs for 60 days? It turns out the DHS secretary does not possess as much authority as she thinks.

If Wis. Stat. § 252.02(6) were the sole factual foundation for criminal charges, no criminal prosecution could result because § 252.02(6) does not have the specificity required for fair notice of the conduct required or prohibited. . . .

Order 28 goes far beyond what is authorized in Wis. Stat. § 252.02(4). For example, Order 28 exceeds the § 252.02(4) authority to quarantine those infected or suspected of being infected. Instead, Palm quarantines “[a]ll individuals. . . .”

Furthermore, nothing in § 252.02(4) permits Palm to close “All for-profit and non-profit businesses with a facility in Wisconsin, except [those Palm defies as essential businesses and operations].”

No. 8. Act 21 still matters. Similar to decisions such as Tetra Tech, the 2011 landmark legislation reset the relationship between state agencies and the legislature. Gone are the days of implied authority. Instead, Wisconsin agencies must reference specific statutory or administrative authority (that survived the rigors of notice and comment requirements) when taking regulatory action. The court made clear that DHS’s reliance on the broad authority granted under Chapter 252 was simply too imprecise.

Therefore, under 2011 Wis. Act 21, the Legislature significantly altered our administrative law jurisprudence by imposing an “explicit authority requirement” on our interpretations of agency powers. . . .

The explicit authority requirement is, in effect, a legislatively-imposed canon of construction that requires us to narrowly construe imprecise delegations of power to administrative agencies.

While not a takeaway, one final observation is worth considering. With Justice Dan Kelly’s spring election loss (a loss largely attributable to the wave of Biden/Sanders presidential-primary voters), it was assumed that the court’s conservative ideological majority bloc would be reduced from five justices to four come August. However, with conservative Justice Brian Hagedorn dissenting, some now wonder if the presumed 4–3 conservative majority is really a 3–3 split with Justice Hagedorn as the swing vote. Justice Hagedorn is a principled and thoughtful jurist. Time will tell if he remains a consistent vote with the conservative majority.

While DHS and the legislature work through the emergency rule-making process, much of the burden of providing clarity will likely fall on local units of government. Many will likely adopt a reasonable and balanced approach. But more important, as the dust settles following issuance of the order, it’s important that Wisconsinites continue to remain engaged. As we have all learned over the last two months, the three branches of government possess immense authority to regulate our daily lives. It is a somber responsibility that requires an engaged and constantly skeptical citizenry.

Put another way, as Justice Kelly observed in Tetra Tech (a decision that would seem to carry even more weight following yesterday’s decision), “We must be assiduous in patrolling the borders between the branches. This is not just a practical matter of efficient and effective government. We maintain this separation because it provides structural protection against depredations on our liberties. The Framers of the United States Constitution understood that ‘[t]he accumulation of all powers legislative, executive and judiciary in the same hands, whether of one, a few or many, . . . may justly be pronounced the very definition of tyranny.’”