INTERNAL MEMORANDUM TO WFDA MEMBERS
RE: The Wisconsin Supreme Court Ruling in Wisconsin Legislature v. Secretary-Designee Andrea Palm, et al
As most of you are aware the Wisconsin Supreme Court struck down Emergency Order #28 yesterday afternoon. The ramifications for Wisconsin funeral service- and all the good people of Wisconsin- are not yet entirely known because the Court suspended the full operation of its ruling until either the Wisconsin Legislature engages in lawmaking or May 20, 2020, whichever comes first.
To briefly explain the Court’s decision as simply and concisely as I can: A segment of the Wisconsin Legislature brought a lawsuit against the Wisconsin Department of Health Services (DHS) claiming that the DHS had overstepped their bounds by issuing Emergency Order #28. As notable background, Governor Evers issued his original Safer At Home Order on March 12. Under Wisconsin law a governor can only maintain a state of emergency for 60 days. Thus, Governor Evers’ Safer At Home Order would expire on May 13 (or arguably May 12). The DHS issued Emergency Order 28 on or about April 16 with it going into effect on April 24 and staying effective until May 26. This had the practical and legal effect of extending Governor Evers’ Safer At Home Order until May 26.
The Wisconsin Supreme Court, in a 4-3 decision, struck down the constitutionality of the DHS’ Emergency Order 28. The Court found that the DHS overstepped its role and effectively engaged in law making- which is the sole province of the Legislature. The Court determined that while the DHS called Emergency Order 28 an “order” it was actually a law because it affected all citizens of Wisconsin, affected anyone who entered the state of Wisconsin, and provided for criminal penalties for non-compliance. The Court determined that only the Legislature could make such a broad law. The Court went on to rather scathingly state that the DHS had usurped the role of the Legislature and was acting far beyond its purpose by enacting law even if DHS described its actions as being an “order.”
The Court struck down DHS Emergency Order 28 and rendered it invalid as of May 13, 2020. However, the Court (at the request of the Legislature- the prevailing party) stayed complete implementation of its own holding until May 20 so that the Legislature could engage in law making to address the COIVD 19 pandemic. The Court was cognizant that striking down Emergency Order 28 with nothing to replace it would result in chaos for the people of Wisconsin. As such, the Court carved out a six day period for the Legislature to act. Chief Justice Roggensack, writing the majority opinion, stated:
“Requesting a stay for a requested injunction is a very unusual request, but we understand that it is driven by the Legislature's concern that confusion may result if Order 28 is declared invalid and actions to enforce our declaration immediately commence. People, businesses and other institutions may not know how to proceed or what is expected of them.
…
Therefore, I conclude there is a legal basis upon which to consider the Legislature's extraordinary request. I too am appreciative of the concerns raised by COVID-19 and the possibility of throwing the state into chaos. Accordingly, although our declaration of rights is effective immediately, I would stay future actions to enforce our decision until May 20, 2020. However, I trust that the parties will place the interests of the people of Wisconsin first and work together in good faith to quickly establish a rule that best addresses COVID-19 and its devastating effects on Wisconsin.”
Thus, for funeral homes the “Rule of 9” which you have become accustomed to remains in place until May 20. If the Legislature acts before May 20, then the Legislature’s new law(s) will go into effect. For Wisconsin funeral homes this means that until May 20 (or possibly earlier if the Legislature votes to enact any law(s) prior to the May 20 deadline) we must follow the Safer At Home Order. Assuming that the Wisconsin Legislature acts and the Governor signs any new bills into law, we will then have new rules under which to operate.
I note that in the meantime several counties (and possibly cities) have enacted their own rules. Whether these are constitutional or nor in light of the Court’s ruling in Wisconsin Legislature v. Secretary-Designee Andrea Palm, et al is not something that I can opine on at this time. Nonetheless, I urge our members to comply between now and May 20.
I also urge caution to all WFDA Members not to make any promises to your families that after May 20 Wisconsin will return to “business as usual” like it was before the pandemic. I expect that the Wisconsin Legislature will take action to phase-in the reopening of Wisconsin. What those phases may be or how they will affect funeral service are simply unknown at this time. Between now and May 20, we should expect there to be a great deal of political wrangling at the Capitol and we at WFDA will do our best to represent the best interests of funeral service.
As always I wish you all the best in these tough times with the now-added challenge of adhering to the quickly changing rules and laws. If I can be of assistance, please let me know.
On behalf of the WFDA Board of Directors, I want to thank you for your membership in WFDA.
Respectfully submitted,
Michael D. Sharkey, Esq.
WFDA General Counsel
