957 N.W.2d 261
Wis.2021Background:
- On October 6, 2020 DHS Secretary-designee Andrea Palm issued Emergency Order 3 limiting indoor public gatherings to 25% of a room/building occupancy or, where no municipal occupancy limit exists, to 10 people.
- Emergency Order 3 defined "public gathering" broadly (indoor events open to the public bringing together non-household members) and listed exemptions (e.g., schools, health care, places of worship); it was enforceable by civil forfeiture and set to expire November 6, 2020.
- Tavern League of Wisconsin, Sawyer County Tavern League, and Flambeau Forest Inn sued, alleging the Order is a rule that required promulgation under Wis. Stat. ch. 227; The Mix Up and others intervened.
- The circuit court denied permanent injunctive relief (after vacating an initial ex parte injunction); the court of appeals reversed, holding Emergency Order 3 invalid under this court’s decision in Wisconsin Legislature v. Palm.
- The Wisconsin Supreme Court, concluding Emergency Order 3 met the statutory definition of a rule and was not promulgated under ch. 227, affirmed the court of appeals and held the Order unenforceable.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Emergency Order 3 is a "rule" requiring ch. 227 promulgation | Order is a general order of general application that implements and interprets statute and therefore is a rule | Order is statutory exercise of authority under §252.02(3) and thus need not be promulgated as a rule | Court: Order meets the five‑part rule definition (general order, general application, effect of law, issued by an agency, implements/interprets statute) and is a rule; invalid for lack of rulemaking |
| Mootness of the appeal (Order expired Nov. 6, 2020) | Plaintiffs sought relief; case not moot because Order had statewide impact and DHS may issue similar orders | DHS argued expiration mooted controversy | Court: issue technically moot but falls under exceptions (great public importance and likely repetition); merits addressed |
| Whether §252.02(3) plainly authorizes forbidding public gatherings without rulemaking | Plaintiffs: DHS interpretation/implementation of §252.02(3) made policy choices (definitions, numeric limits) triggering rule definition | DHS: §252.02(3) expressly authorizes forbidding public gatherings (as with school closures in Palm), so no rulemaking required | Court: DHS both implemented and interpreted §252.02(3) (e.g., defining "public gathering" and treating "forbid" as numeric limit), satisfying "implement/interpret" prong of rule test |
Key Cases Cited
- Wisconsin Legislature v. Palm, 391 Wis. 2d 497, 942 N.W.2d 900 (Wis. 2020) (established that statewide orders limiting public gatherings can be rules requiring ch. 227 promulgation)
- Citizens for Sensible Zoning, Inc. v. DNR, 90 Wis. 2d 804, 280 N.W.2d 702 (Wis. 1979) (defines when an agency order is a general order of general application)
- Cholvin v. DHFS, 313 Wis. 2d 749, 758 N.W.2d 118 (Wis. Ct. App. 2008) (agency directives enforceable by civil forfeiture can have the effect of law)
- Lamar Central Outdoor Co. v. Div. of Hearings & Appeals, 389 Wis. 2d 486, 936 N.W.2d 573 (Wis. 2019) (agency interpretation requires rulemaking when statute is not plain and unambiguous)
- Journal Times v. City of Racine Bd. of Police & Fire Comm'rs, 362 Wis. 2d 577, 866 N.W.2d 563 (Wis. 2015) (standards for independent review of legal questions)
- NLRB v. Wyman-Gordon Co., 394 U.S. 759 (U.S. 1969) (rulemaking assures fairness and mature consideration for rules of general application)
- Schoolway Transp. Co. v. Div. of Motor Vehicles, 72 Wis. 2d 223, 240 N.W.2d 403 (Wis. 1976) (if statute is unambiguous, agency must administer it as written and need not promulgate a rule)
- Brown Cnty. v. DHSS, 103 Wis. 2d 37, 307 N.W.2d 247 (Wis. 1981) (agency effectuating statute when acting within powers expressly conferred by statute)