The Wisconsin Supreme Court has struck down the “Safer at Home” Order (Emergency Order #28) (“Order”) issued by Secretary-Designee of the Department of Health Services, Andrea Palm, at the direction of Governor Tony Evers. In a 4-3 decision accompanied by several concurring and dissenting opinions, the Court’s majority concluded that the Order was “unlawful, invalid, and unenforceable.” Wisconsin Legislature v. Palm, et. al., Case No. 2020AP765-OA, 2020 WI 42 (May 13, 2020).

The Court’s Decision

Before examining the fine print of the Court’s decision, school officials should note that the portion of the Order that closed Wisconsin’s public and private K-12 schools survived the Court’s review. In this regard, the Court expressly stated that the Section of the Secretary-Designee’s Order that closed Wisconsin’s public and private K-12 schools was not struck down by its decision and, therefore, remained in place.

The Court gave no explanation for doing so, however. The Court broadly stated that the Order “is unenforceable,” and then simply added (in two (2) footnotes) that “[t]his decision does not apply to Section 4. a. of Emergency Order 28” (Section 4. a. provides that “[p]ublic and private K-12 schools shall remain closed for pupil instruction and extracurricular activities for the remainder of the 2019-2020 school year.”).

The only reference the Court made that might shed light on this subject appears at footnote 12 of the Court’s majority opinion, where the Court noted that “…the definition of a rule does not cover decisions that ‘relate [ ] to the curriculum of, admission to or graduation from a public educational institution, as determined by each institution.’” Therefore, the Court noted that certain administrative decisions related to public education are not “rules” by definition. Nevertheless, the Court failed to connect the dots between its observation that certain decisions made by public education institutions are not rules and the portion of the Order that closed public and private K-12 schools.

Therefore, school officials should bear in mind that the Order closing schools remains in place, although there may be further debate over the proper meaning and application of that part of the Secretary-Designee’s Order.

The primary issues presented by the Wisconsin Legislature’s Emergency Petition to the Court were (1) whether the Secretary-Designee’s Order is a “rule” and, for this reason, whether the Secretary-Designee “broke the law” by “failing to follow the emergency rule procedures required by Wis. Stat. § 227.24, and (2) whether the Secretary-Designee exceeded her authority by ordering citizens to “stay home, closing all ‘non-essential’ businesses, prohibiting private gatherings of any number of people who are not part of a single household, and forbidding all ‘non-essential’ travel.”

The Secretary-Designee maintained that the Order was not a rule and, accordingly, her failure to follow statutory rule making procedures did not affect the validity of her Order. Instead, the Secretary-Designee contended that by enacting Wis. Stat. § 252.02, the Legislature had already authorized the Secretary-Designee to issue this type of order as a means of protecting the public health in a pandemic. For the same reason, the Secretary-Designee maintained that the Order did not exceed her authority under state law.

The Court concluded that the Order was a “rule” under established precedent. As a result, the Court reasoned that the rulemaking procedures of Wis. Stat. § 227.24 had to be followed for the rule to be valid. Because those procedures were not followed, the Court concluded that the Order is “unenforceable.”

The Court added that “there can be no criminal penalties for violations of (the) order,” because the procedural safeguards of the statutory rulemaking process were not followed. The Court reasoned that it is imperative that the rulemaking process be followed when a rule imposes criminal penalties and, indeed, that a declaration is all but certain to be a “rule” when it imposes criminal sanctions, because determining that certain behavior will be subject to criminal penalties is a decision for the legislature to make.

The Court also determined that the Order “exceeded the statutory authority of Wis. Stat. § 252.02 upon which (the Secretary-Designee) claims to rely.” As a result, the Court concluded that the Order was invalid, regardless of whether it qualified as a rule or not.

Therefore, the Court struck down the Order virtually in its entirety: only the portion of the Order that closed K-12 schools was left intact.

What Does the Court’s Decision Mean?

Although the Court’s decision does not answer any number of questions (and prompts additional queries), some guidance can be taken from the Court’s ruling, as well as its reasoning.

As noted, public and private K-12 facilities will remain closed for pupil instruction and extracurricular activities for the remainder of the 2019-20 school year, i.e., through June 30, 2020. Presumably, this means that other school activities that have been permitted or mandated are not affected by the Court’s ruling as well. For example, distance learning and school meal services can (or must) continue as before.

Meetings of local governmental bodies — such as school boards and technical college district boards — appear to be largely unaffected by the Court’s decision. The Order exempted “Essential Government Functions,” and the functions then identified by the Order specifically included meetings held by governmental bodies.

However, the Order did issue general requirements concerning social distancing when “individuals are using shared or outdoor spaces other than their home or residence.” As a result, it has never been absolutely clear whether the Order purported to mandate social distancing at government meetings, even though the exemption did make clear that local governments could meet and that individuals could “leave their homes or residences” to attend “Essential Government Functions,” like school board or technical college board meetings. In any event, the Court has struck down the social distancing mandates that were part of the Order. Consequently, it is up to local governmental bodies to enforce social distancing protocols at government meetings or elsewhere.

The Court’s decision complicates school board decision-making about high school graduation ceremonies. By striking down the Order, the Court struck down any number of restrictions and prohibitions related to gatherings at off-campus spaces. As a result, the Court’s decision invalidates restrictions on the use of off-campus spaces where such ceremonies could be held, regardless of how Section 4. a. of the Order concerning school closures is interpreted.

Further, Section 4. a. of the Order closed school facilities for “pupil instruction and extracurricular activities.” While health considerations are important regardless of whether laws and regulations are in place to support them, there has been good faith debate about whether a graduation ceremony constitutes an instructional or extracurricular activity.

The Department of Health Service issued guidance that “recommends that schools cancel or postpone all in-person ceremonies for spring and summer graduations” (emphasis added). Deputy Superintendent Michael Thompson has indicated that Section 4. a. of the Order — the Section that the Court let stand — means that “…school facilities are closed through June 30 for instruction or other purposes except for essential functions laid out in the order” (emphasis added). This indicates that — at least on a practical level — DPI is equating the phrase “extracurricular activities” with any function that does not involve “instruction” or is not defined as “essential” in the Order.

These aspects of the Court’s decision place local government officials in a position of heightened responsibility when it comes to high school graduation, regardless of whether graduation ceremonies are held on-campus or off-campus.

The number of Wisconsin counties and cities that are adopting local “safer at home” ordinances continue to rise. These ordinances generally would have the effect of prohibiting a gathering of people as large as a conventional high school graduation ceremony.

Moreover, school and technical college officials not only have to consider any local government regulations that may apply, but also have to consider local health authorities’ (if any) and law enforcement agencies’ perspectives.

In addition, it makes good sense for schools and technical college boards to consult with their insurance carriers to determine whether they have coverage (and, if so, whether they have enough coverage) to be insured against potential claims that individuals who attend their graduation ceremonies might bring if they became ill or were infected by COVID-19.

School and technical college officials also have to consider the health implications of having a ceremony that large groups of people attend. Laws and regulations are only part of the analysis; public officials need to consider the health and well being of all concerned when making decisions about whether graduation ceremonies should be held and, if so, how to structure those events.

In closing, it bears mentioning that the Court’s decision to strike down the Secretary-Designee’s Order is only the beginning of legal challenges to the government’s efforts to respond to the COVID-19 pandemic. The night before the Supreme Court heard oral argument in this case, an emergency petition was filed in another case. Fabick v. Palm, et. al. (Emergency Petition for Original Action, May 5, 2020). That petition challenges the Secretary-Designee’s Order on a number of grounds related to individual rights, including “freedom of worship,” “freedom of speech,” and the “right to travel” under the Wisconsin Constitution.

It is not clear whether the Court can or will proceed with the case, given that the petition challenges the same Order that has now been struck down. It is clear, however, that there will continue to be debate over the nature and scope of the government’s authority to restrict individuals’ and groups’ activities in an effort to secure the public’s health and well being in the midst of a deadly pandemic.

For questions regarding this article, please contact your Renning, Lewis & Lacy attorney.

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