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October 14, 2020 Feature

How the Wisconsin Legislature Reopened the State with a Mundane Legal Theory

By Lane Ruhland

COVID-19 not only has wreaked havoc on our country’s population and economy, but it also has kept lawyers quite busy, especially in Wisconsin. Wisconsin’s legislative and executive branches certainly do not see eye to eye on policy matters with a democratic governor and republican-controlled legislature, and that tenuous relationship has been strained further by continual confrontations in court, only increased by the presence of the pandemic. For example, the Wisconsin legislature has defended against numerous challenges to Wisconsin’s election administration brought by outside groups as well as when the governor attempted to reschedule Wisconsin’s spring election due to the pandemic.1 Thus far, the legislature has been successful in these cases. Perhaps the most tense confrontation came in the legislature’s challenge to the authority of the governor’s cabinet secretary, Andrea Palm, in Wisconsin Legislature v. Palm.2

Like many other states, in spring 2020, the Wisconsin Department of Health Services (DHS), through Emergency Order No. 283 (commonly known as the “Safer at Home” order), required all individuals within the state to stay at home, with some broad exceptions. For example, you could leave your home for certain emergency care, or to travel to your workplace, only if your line of work was deemed “essential.” The order broadly defined work that was essential and that which was not. Any business that claimed to be essential could contact the Department of Workforce Development (DWD) to make the case, after which DWD, using obscure criteria, then would decide.

The strict limitations on travel and the unilateral determination of which businesses were essential caused great consternation among many in Wisconsin, including the legislature. There was concern not only with the economic impact of the order but also with the precedent of allowing one individual, unaccountable to the electorate, to issue sweeping orders such as this without any opportunity for review or oversight. The legislature and others were concerned with the nearly unfettered authority of the DHS to create law and impose criminal penalties.4

Unlike the vast majority of other state legislatures that sued to reopen an executive “lockdown,” Wisconsin set forth a legal theory not based on the U.S. First or Fifth Amendments or on pure statutory interpretation. The legislature relied instead on an area of law that many attorneys find insufferable—Wisconsin’s Administrative Procedure Act (APA). In Palm, the legislature argued that the DHS secretary had violated the APA in two ways: (1) she promulgated an administrative rule, but did not follow the correct process, and (2) DHS did not have the underlying statutory authority to promulgate this kind of a rule in the first place.5

Wisconsin’s Administrative Procedure Act

Wisconsin case law makes clear that all administrative agencies are creatures of the legislature or of statute. The court recognized in Palm that “when a grant of legislative power is made, there must be procedural safeguards to prevent the ‘arbitrary, unreasonable or oppressive conduct of the agency.’”6 Procedural safeguards, generally, are those requirements imposed by the Wisconsin APA, codified in Chapter 227 of Wisconsin statutes.

Most relevant to this case, Chapter 227 requires that all agencies of the state follow certain procedures in rulemaking, procedures that necessarily are rigorous. Wisconsin’s APA provides due process to affected parties and is the enshrinement of separation of powers principles. Thus, an important question in this case, as with many actions challenging agency action, was whether the action taken by the agency met the definition of a “rule.”

The Chapter defines a “rule” as follows:

“a ‘[r]ule’ means a regulation, standard, statement of policy, or general order of general application that has the force of law and that is issued by an agency to implement, interpret, or make specific legislation enforced or administered by the agency or to govern the organization or procedure of the agency. “Rule” includes a modification of a rule under s. 227.265.”7

Another key component of Chapter 227 is the requirement found at section 227.10(2m) which prohibits an agency from implementing or enforcing a standard, requirement, or threshold, including as a term or condition of any license issued by the agency, unless that standard, requirement, or threshold is explicitly required or explicitly permitted by statute or by rule that has been promulgated in accordance with chapter 227.8

Promulgating an administrative rule in Wisconsin is a necessarily lengthy process. On average, the time to promulgate a rule can total nearly 30 months. The legislature also had determined that this months-long process of promulgating a permanent rule may be untenable in an emergency, like a pandemic or other public health crisis, and thus created an emergency rulemaking process. Agencies can promulgate “emergency rules” that require a statement of the scope, gubernatorial approval, and publication.9 Unlike permanent rules that are subject to an extensive review by the legislature before promulgation, emergency rules only allow for legislative review once promulgated. These emergency rules typically expire after 150 days unless extended by the Joint Committee for the Review of Administration Rules (JCRAR)—the legislative committee tasked with overseeing administrative rulemaking.10

Upon promulgation of an emergency rule, JCRAR can request hearings and can suspend the rule for a number of reasons on a finding that any of the following are true:

(1) There is an absence of statutory authority for the agency;

(2) There is an emergency relating to public health, safety, or welfare;

(3) There is a failure to comply with legislative intent;

(4) There is a conflict with state law;

(5) There has been a change in circumstances since enactment of the earliest law upon which the proposed rule is based;

(6) The rule is arbitrary and capricious.11

This suspension process provides the legislature oversight of agency action to ensure agency compliance with Wisconsin’s APA. JCRAR may require an agency to promulgate agency action as a rule, and may suspend a rule in multiple iterations. A finding that a rule is illegally promulgated means the rule is unenforceable.

Wisconsin Legislature v. Palm—Arguments Before the Court

If the Wisconsin Supreme Court were to find that the Safer at Home order met the definition of a rule under Wisconsin’s APA, the order would be unenforceable under the theory ultimately put forward by the legislature. The question before the court in Palm thus was whether the Safer at Home order constituted a “rule” and whether the DHS secretary complied with the necessary process under Wisconsin’s APA. The legislature was not able to exercise its oversight function and thus argued that it was harmed, in that if the order had been promulgated as an emergency rule, JCRAR would have likely suspended the rule for one of the reasons that DHS did not have the requisite statutory authority and that order was arbitrary and capricious.

The legislature argued and the court agreed that the Safer at Home order was indeed an administrative rule because it is a “general order of general application” “that has the force of law,” including provisions for criminal penalties. The court reasoned that the Safer at Home order applied to nearly all types of behavior statewide and to every citizen or visitor of the state, requiring that one stay home or face imprisonment, with exceptions only for essential activity.

Wisconsin DHS countered that the order was not an administrative rule but was instead an “order” of statewide application. DHS cited their authority under Wis. Stat. § 252.02(4), which allows DHS “to promulgate rules or issue orders” to contain the spread of communicable diseases. The language of the statute allowing them to make rules or orders meant that the legislature intended that DHS may issue orders or rules, thus an order is not a rule. This was the crux of the rationale by the dissent in the case as to whether Chapter 227 procedures applied.

Importantly, the Supreme Court rejected the argument that rulemaking procedures do not apply to actions responding to specific, limited-in-time scenarios. DHS had replied to the complaint stating that the Safer at Home order is not a general order of general application because it responds to a specific situation, explaining that while an order responding to the pandemic generally applies to the population as a whole, it is not of “general application” as it responds only to a specific, limited-in-time scenario. One dissenting justice agreed with DHS’s argument here finding that “[g]overnment orders with limited application to a particular situation and individual circumstances warranting temporary action are not what rulemaking is designed to address.”12

The court’s conclusion that the Safer at Home order constituted an illegally promulgated rule rendering it unenforceable meant that it did not need to decide the case on statutory interpretation grounds. It did not have to decide whether state statutes provide DHS the authority to forbid travel and determine whether a business is essential or nonessential. The majority nevertheless determined that DHS indeed did not have the requisite authority in many instances, so that even if the secretary had promulgated the rule appropriately, she lacked the necessary underlying statutory authority to do many things in the order, for example, restricting travel and determining that a business is essential.

Local Government Actions in the Face of COVID-19 and after Wisconsin Legislature v. Palm

On the evening of May 13, 2020, the same day that the Wisconsin Supreme Court struck down the Safer at Home Order, a number of cities and counties in Wisconsin essentially copied and pasted the order adopting it by local resolution or order. Soon thereafter, the vast majority of these local government orders were rescinded on advice that local governments could not create new crimes, certainly not outside of the ordinance process.

In the aftermath of the decision in Palm, a number of local governments have or have attempted to enact their own resolutions or ordinances in response to COVID-19. The terms of these actions span from simple recommendations all the way to restrictive ordinances that carry potential fines of up to $25,000 per violation per day. Local governments in Wisconsin derive their authority to respond to a public health crisis from statutes that appear almost identical to those enabling the Wisconsin DHS. Unlike DHS, local governments are not subject to the Wisconsin APA, and any legal challenges to these ordinances will look vastly different from the winning theory in Palm. A case currently is before the Wisconsin Court of Appeals challenging a local order in the City of Racine, and it will be some time before it and similar challenges from other cities are resolved.

Looking Ahead: Government Responses to Times of Crisis

Tension between branches of Wisconsin government are heightened as a result of litigation as well as political, policy, and personality disputes, but the decision in Palm has left everyone with the understanding that: (1) Wisconsin’s Constitution and laws require the cooperation of branches even in cases of emergencies; (2) local governments are sometimes in the best position with the best tools to appropriately respond to health crises in a way that is narrowly tailored and potentially most effective. Calls for serious revisions to Wisconsin laws will not end with this litigation; in fact, renewed calls for suspensions of Wisconsin’s election laws in the name of equity now are being litigated. COVID-19 will continue to impact our nation’s relationships manifesting sometimes as a simple contract dispute and other times as battles between branches of government fighting to protect their constitutional prerogative. This is true and will continue to be in Wisconsin.


1. Wisconsin Legislature v. Evers (No. 2020AP608-OA) available at

2. Wisconsin Legislature v. Palm, 2020 WI 42.

3. Wisconsin Department of Health Services, Emergency Order #28 (Apr. 2020) available at

4. “This Order is enforceable by any local law enforcement official, including county sheriffs. Violation or obstruction of this Order is punishable by up to 30 days imprisonment, or up to $250 fine, or both.” Wis. Stat. § 252.25. Id.

5. That is not to say that the heart of the claim made in Wisconsin Legislature v. Palm was not constitutionally based; in fact, Wisconsin’s Administrative Procedure Act enshrines in statute Separation of Powers and Due Process principles.

6. Wisconsin Legislature v. Palm, 2020 WI 42, ¶34.

7. Wis. Stat. § 227.01(13).

8. Section (2m) was a critical component of the legislature’s case against DHS because in order for an agency to promulgate a rule in the first place, they need the underlying explicit statutory authority; namely to restrict free travel and order the closure of businesses on a statewide scale.

9. See generally Wis. Stat. § 227.24.

10. Wis. Stat. § 227.24(1)(c).

11. Wis. Stat. § 227.19(4)(d).

12. Wisconsin Legislature v. Palm, 2020 WI 42, ¶217 (J. Hagedorn, dissenting).

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By Lane Ruhland


Lane Ruhland is special counsel for the Madison, Wis., office of Husch Blackwell LLP. She represented the Wisconsin state legislature in Wisconsin Legislature v. Palm. Ruhland enjoys helping clients navigate the intersection of law, politics, and media awareness. She understands that due diligence in this legal sector must go beyond compliance and encompass campaign image. In addition to a focus on campaign finance matters, her career has centered on navigating the complex administrative rulemaking process, which has given her a unique knowledge of where administrative law and legislative matters align.