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Legislative Leaders - Evers Order Not Enforceable

October 8, 2020

The Assembly Speaker and Senate Majority Leader both said that because Governor Evers did not go through the Administrative Rule process required by the State Supreme Court, his order limiting the size of public indoor gatherings is not enforceable.

In a letter to Speaker Vos, the non-partisan Legislative Reference Bureau concluded that it is likely a court would require the Governor’s Order to go through the legislative rule making process:

   “A court following the reasoning of Wisconsin Legislature v. Palm would likely require Emergency Order #3,    which limits public gatherings, to be promulgated as a rule. “

The LRB opinion concluded that a Court would likely rule that the Order needs to be approved by the Legislative rulemaking before it can be enforceable:

  “Following Wisconsin Legislature v. Palm, the applicable test is whether Emergency Order #3 is an   order of general    application based on the class of persons to which the order applies. A court    applying this test would likely determine that    Emergency Order #3 is an order of general application    and that, therefore, DHS is required to follow rulemaking procedures    to make such an order.”

In addition, the City of Milwaukee has said they do not intend to follow the Order and instead will continue with their local Order which is greater than the 25% threshold.

Based on the LRB memo and the Palm Supreme Court ruling it is clear the Order issued by Governor Evers’ Administration needs to go through the legislative rule making process before it can be enforced.

See the letter Fitzgerald and Vos sent to Palm: 

See the Vos statement: 

See the LRB opinion: 

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