A split state Supreme Court today ruled Gov. Tony Evers’ administration didn’t have the power to limit public gatherings last fall in an effort to combat a rise in COVID-19 cases.

In the 4-3 ruling, the court found the order issued by then-Health Services Secretary Andrea Palm should’ve gone through the administrative rules process. Because it didn’t, the order was invalid and unenforceable.

The majority added Palm’s order met the definition of a rule the court had laid out in a previous decision that overturned her extended stay-at-home order in May 2020.

In today’s ruling, the court noted the issue over Palm’s restrictions on public gatherings was moot because they expired last fall. Still, the majority addressed the issues raised to reaffirm the limits of the Department of Health Services’ powers.

The original Palm order, issued in October, restricted indoor gatherings to 25 percent of a room’s capacity. The Tavern League sued over the restriction.

Two weeks later, the 3rd District Court of Appeals placed the order on hold. It then expired Nov. 6, the same day the appeals court ruled 2-1 the restriction should’ve been issued as an administrative rule.

Still, writing for the majority, Chief Justice Pat Roggensack noted the case involves a question of whether Palm issued an order that violated state law. Roggensack also pointed out the former secretary’s directive impacted “every person in Wisconsin, in one way or another” as well as those who visit. Those factors overcome any arguments of the case being moot.

“It charts a course that the Secretary-designee will repeat with future orders,” Roggensack wrote. “Accordingly, it is important to confirm, once again, that Emergency Order 3 is beyond the power that the legislature delegated to the Secretary-designee.”

Roggensack was joined in the majority by fellow conservatives Rebecca Bradley, Brian Hagedorn and Annette Ziegler.

Justice Ann Walsh Bradley, in her dissent, knocked the majority for what she wrote was a “faulty statutory analysis” that “once again leads this court to undermine public health measures.”

The court late last month struck down Evers’ latest public health declaration, which served as the foundation for his statewide mask mandate.

Ann Walsh Bradley argued the court’s ruling striking down Palm’s stay-at-home order nearly a year ago didn’t address the question now before the court. She also opined the plain language of state law gives DHS the power to forbid public gatherings.

“Instead, it contrives a roadblock that is not part of the statute, and forces DHS to go through a cumbersome rulemaking procedure,” Ann Walsh Bradley wrote.

She was joined by fellow liberals Rebecca Dallet and Jill Karofsky.


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