COVID-19 Summary: On April 21, 2020, the Wisconsin Legislature filed an emergency petition against the Wisconsin Department of Health Services to enjoin the Emergency Orders passed in response to COVID-19. On May 13, the Supreme Court of Wisconsin declared Emergency Order 28 unlawful, invalid, and unenforceable.

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On April 21, 2020, the Wisconsin Legislature filed an emergency petition for action against the Wisconsin Department of Health Services (DHS) to enjoin the Emergency Orders passed in response to COVID-19. This emergency petition was filed in response to a series of orders passed in response to COVID-19. On March 12, 2020, Governor Tony Evers issued Executive Order 72, which directed DHS to take measures to prevent the spread of COVID-19 in the state. On March 24, “at the direction of” the Governor, the defendant issued Emergency Order 12 requiring Wisconsin citizens to stay at home, prohibiting non-essential travel, and closure of all non-essential businesses. On April 16, the defendant issued Emergency Order 28, which imposed criminal penalties for violations of the order.

Filed in the Supreme Court of Wisconsin, the plaintiffs brought this action under state law and argued that the defendant exceeded the department’s authority. The plaintiff alleged that the defendant violated the state’s governing emergency rules by issuing Emergency Order 28 without complying with the rulemaking procedures. The plaintiff sought a declaratory judgment that Order 28 was invalid and unenforceable. The plaintiffs also filed a motion for a temporary injunction to enjoin Order 28, with a six-day stay on the injunction to allow DHS to promulgate a new rule. They were represented by private attorneys.


On April 29, Legal Action of Wisconsin, the Wisconsin Public Health Association, and other independent organizations filed amicus briefs in support of the defendants. They argued that Order 28 was not a rule and that DHS had statutory authority to support the order. Three independent organizations filed an amicus brief in support of the plaintiff.

Oral argument was held on May 5. On May 13, the Wisconsin Supreme Court declared Emergency Order 28 unlawful, invalid and unenforceable. 391 Wis.2d 497. Specifically, the court found Order 28 to be a rule under Wisconsin statute, and because the defendant did not follow the procedures for rule-making during the promulgation of Order 28, no criminal penalties were to be imposed. The Supreme Court also held that the defendant exceeded their authority.

Averyn Lee - 06/14/2020


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