PATIENCE DRAKE ROGGENSACK, C.J.This case is about the assertion of power by
one unelected official, Andrea Palm, and her order to all people within Wisconsin to remain in their homes, not to travel and to close all businesses that she declares are not "essential" in Emergency Order 28. Palm says that failure to obey Order 28 subjects the transgressor to imprisonment for 30 days, a $250 fine or both. This case is not about Governor Tony Evers' Emergency Order or the powers of the Governor. ¶2Accordingly, we review the Wisconsin Legislature's Emergency Petition for Original Action that asserts:(1)Palm as Secretary-designee of the Department of Health Services (DHS), broke the law when she issued Emergency Order 28 after failing to follow emergency rule procedures required under Wis. Stat.§227.24 (2017-18),1and (2)even if rule making were not required, Palm exceeded her authority by ordering everyone to stay home,2closing all "non-essential" businesses,3prohibiting private gatherings of any number of people who are not part of a single household,4and forbidding all "non-essential" travel.5Palm responded that Emergency Order 28 is not a rule. Rather, it is an Order, fully authorized by the powers the Legislature assigned to DHS under Wis. Stat. §252.02.
No.2020AP765-OA24whether Emergency Order 28 exceeded the scope of permissible actions under §252.02.¶44Palm claims that "the meaning of the provisions in[Wis. Stat. §]252.02 are plain."She argues that "DHS has the power to take direct action to control communicable diseases, just as it did through Safer-at-Home[Order 28]."She asserts that §252.02(6) gives DHS expansive authority to respond to a rare public health crisis like COVID-19. Therefore,she can "authorize and implement all emergency measures necessary to control communicable diseases." In addition, Palm asserts that Order 28 is independently authorized under §252.02(4), which provides DHS with multiple avenues "for the control and suppression of communicable diseases." And finally, many of Order 28's provisions also fall under §252.02(3), which Palm asserts empowersherto "close schools and forbid public gatherings in schools, churches, and other public places to control outbreaks and epidemics."¶45Palm asserts her broadest grant of authority is Wis. Stat. §252.02(6) because it says she can authorize and implement "all" emergency measures "necessary" to control communicable diseases.15She asserts that "'all' [as a modifier]suggests an expansive meaning because 'all' is a term of great breadth." She cites Project Vote/Voting for Am., Inc. v. Long, 682 F.3d331, 336 (4th Cir. 2012) (quoting Nat'l Coal. for Students with Disabilities Educ. & Legal Def. Fund v. Allen, 152 F.3d283, 290 (4th Cir. 15Wisconsin Stat. §252.02(6) provides: "The department may authorize and implement all emergency measures necessary to control communicable diseases."
No.2020AP765-OA251998)). She argues that she does not have limitless power under this subsection because it applies "only in an 'emergency,'" and "the statute requires an action be 'necessary.'"¶46Crimes created by the Legislature in statutes must have specificity in order to be enforceable. State v. Popanz, 112 Wis.2d 166,173,332 N.W.2d 750 (1983)(explaining that a "criminal statute must be sufficiently definite to give a person of ordinary intelligence who seeks to avoid its penalties fair notice of conduct required or prohibited"). Because Palm fails to understand the specificity necessary to a valid criminal statute, she also fails to understand that no less specificity is required of a rule to which criminal penalties are assigned. Courtney, 74 Wis. 2d at 709. ¶47If Wis. Stat. §252.02(6) were the sole factual foundation for criminal charges, no criminal prosecution could result because §252.02(6) does not have the specificity required for fair notice of the conduct required or prohibited. Stated otherwise, it has no definable standards for required or prohibited conduct. Popanz, 112 Wis.2d at 173. If Emergency Order 28 had been promulgated as a rule, it has much more specificity; however, since no rulemaking occurred, Order 28 cannot save itself. ¶48Palm next cites Wis. Stat. §252.02(4).16Section252.02(4) addresses four occurrences that permit DHS 16Wisconsin Stats. §252.02(4) provides: Except as provided in ss. 93.07 (24) (e) and 97.59, the department may promulgate and enforce rules or issue orders for guarding against the introduction of any communicable disease into the state, for the control and
No.2020AP765-OA26action:First, "for guarding against the introduction of any communicable disease into the state;" second, "for control and suppression of communicable diseases;" third, "for the quarantine and disinfection of persons, localities and things infected or suspected of being infected by a communicable disease," and fourth, "for the sanitary care of jails, state prisons, mental health institutions, schools,and public buildings and connected premises."¶49However, Order 28 goes far beyond what is authorized in Wis. Stat. §252.02(4). For example, Order 28 exceeds the §252.02(4) authority to quarantine those infected or suspected of being infected. Instead, Palm quarantines "[a]ll individuals present within the State of Wisconsin" by ordering them "to stay at home or at their place of residence" with exceptions she deems appropriate.17She also prohibits "All public and private gatherings of any number of people that are not part of a single suppression of communicable diseases, for the quarantine and disinfection of persons, localities and things infected or suspected of being infected by a communicable disease and for the sanitary care of jails, state prisons, mental health institutions, schools, and public buildings and connected premises. Any rule or order may be made applicable to the whole or any specified part of the state, or to any vessel or other conveyance. The department may issue orders for any city, village or county by service upon the local health officer. Rules that are promulgated and orders that are issued under this subsection supersede conflicting or less stringent local regulations, orders or ordinances.17Emergency Order, Section 1.
No.2020AP765-OA27household or living unit."18Again, this directive is not based on persons infected or suspected of being infected. ¶50Palm skips over this obvious overreach and contends that the first and second provision of Wis. Stat. §252.02(4) permit actions taken in Order 28. However, once again, Order 28 is overly broad in its proscriptions. "Áll forms of travel are prohibited except for essential travel as defined in this Order,"19i.e., by Palm. If this restriction supposedly is connected to the first permissible action under §252.02(4) to "guard against the introduction of any communicable disease into the state," Order 28 goes well beyond entry of communicable disease into the state. It prevents "All forms of travel," not simply interstate travel. Furthermore, nothing in §252.02(4) permits Palm to close "All for-profit and non-profit businesses with a facility in Wisconsin, except [those Palm defies as essential businesses and operations]." She cites no authority for this vast seizure of power. ¶51In opposition to Palm's claims, the Legislature raised legislatively-imposed directives that courts are to follow when interpreting the scope of agency authority. To place this contention in context,the reader should note that there is history underlying how courts have interpreted administrative agency powers. Formerly, court decisions permitted Wisconsin administrative agency powers to be implied. SeeWis. Citizens 18Id., Section 3.19Id., Section 5.
No.2020AP765-OA28Concerned for Cranes &Doves v. DNR, 2004 WI 40, ¶14, 270 Wis.2d 318, 677 N.W.2d612. In theory, "any reasonable doubt pertaining to an agency's implied powers" was resolved "against the agency." Wis. Builders Ass'n v. DOT, 2005 WI App 160, ¶9, 285 Wis.2d472, 702 N.W.2d433. However, the Legislature concluded that this theory did not match reality. Therefore, under 2011 Wis. Act 21,the Legislature significantly altered our administrative law jurisprudence by imposing an "explicit authority requirement"on our interpretations of agency powers.Kirsten Koschnick, Comment, Making"Explicit Authority" Explicit Deciphering Wis. Act 21's Prescriptions for Agency Rule making Authority, 2019 Wis. L. Rev.993, 997. ¶52The explicit authority requirement is codified at Wis. Stat. §227.10(2m), which provides:"No agency may implement or enforce any standard, requirement, or threshold,...unless that standard, requirement, or threshold is explicitly required or explicitly permitted by statute or by a rule that has been promulgated in accordance with this subchapter[.]" Furthermore, Wis. Stat. §227.11(2)(a)1.—3., as summarized by a recent comment in the Wisconsin Law Review, "prevent
agencies from circumventing this new 'explicit authority' requirement by simply utilizing broad statutes describing the agency's general duties or legislative purpose as a blank check for regulatory authority."2020Wisconsin Stat. §227.11(2)(a)2. provides:"A statutory provision describing the agency's general powers or duties does not confer rule-making authority on the agency or augment the agency's rule-making authority beyond the rule-making authority that is explicitly conferred on the agency by the legislature."
No.2020AP765-OA29Koschnick, Making "Explicit Authority" Explicit, at 996.The explicit authority requirement is, in effect, a legislatively-imposed canon of construction that requires us to narrowly construe imprecise delegations of power to administrative agencies.SeeAntonin Scalia & Bryan A. Garner, Reading Law:The Interpretation of Legal Texts225 (2012) ("Interpretive-Direction Canon":"interpretation clauses are to be carefully followed.").¶53In addition, the Legislature cites two more canons of constructionthat it asserts apply here:first, the Legislature does not alter fundamental details of a regulatory scheme in vague terms or in ancillary provisions. Second, the Legislature cites the constitutional-doubt principle. As the United States Department of Justice has recently written in a COVID-19-related case raising constitutional issues, "There is no pandemic exception...to the fundamental liberties the Constitution safeguards. Indeed, 'individual rights secured by the Constitution do not disappear during a public health crisis.' These individual rights, including the protections in the Bill of Rights made applicable to the states through the Fourteenth Amendment, are always in force and restrain government action." Statement of Interest, Temple Baptist Church v. City of Greenville, No. 4:20-cv-64-DMB-JMV(N.D. Miss. April 14, 2020), ECF No. 6 (quotingIn re Abbott, 954 F.3d 772 (5thCir. 2020)).¶54With these canons as guides, the Legislature interprets Wis. Stat. §252.02(3), (4) and(6) much differently than Palm.To some extent, Palm and the Legislatureare talking past each other. For example, Palmfocuses on §252.02(6)which she asserts
No.2020AP765-OA30granted broad powers to DHS. The Legislature focuses on the necessary procedural foundation that must precede DHS's implementation or enforcement. As Wis. Stat. §227.10(2m) directs, unless a rule has been promulgated pursuant to ch. 227 or the DHS action is "explicitly required or explicitly permitted by statute" DHS has no power to implement or enforce its directives.¶55We do not define the precise scope of DHS authority under Wis. Stat. §252.02(3), (4) and(6) because clearly Order 28 went too far. We cannot expansively read statutes with imprecise terminology that purport to delegate lawmaking authority to an administrative agency. The Legislature appropriately cites the statutory explicit authority requirement, Wis. Stat. §229.10(2m),and has provided plausible readings of the text.¶56We have declared rights under the law wherein we have concluded that Emergency Order 28 is invalid and therefore, unenforceable.
https://www.wicourts.gov/sc/opinion/DisplayDocument.pdf?content=pdf&seqNo=260868
