Evers administration releases framework for emergency rule as local governments take charge

While local orders rule, a University of Wisconsin Law School Professor questions how those would handle legal challenge following state Supreme Court ruling

Editor’s note: The video attached to this story attributes the Joint Committee on Review of Administrative Rules’ authority to lame-duck legislation, however that power is retained under prior state statutes. 

MADISON, Wis. — Gov. Tony Evers approved the outline for a new emergency rule on Thursday that could replace the defunct “Safer at Home” order.

The scope statement is the first step in the emergency rule-making process laid out by state law and ordered by the state Supreme Court, which tossed the “Safer at Home” order in a 4-3 ruling Wednesday. Evers said he expects it will be published by Monday, and it would go into effect after a 10-day public comment period.

A scope statement lays out the intentions for the emergency rule. According to a copy provided to News 3 Now, the Department of Health Services is likely to push for an approach similar to the Safer at Home order.

“There is presently no viable alternative to the kinds of social distancing, reducing in-person contact, and related measures to control the spread of the disease that have been adopted in most states,” the statement said.

It continued, saying the department will use federal guidelines for reopening and current orders, such as the Badger Bounce Back plan, to create its emergency rule, while recognizing “that opening up the economy without thoughtful evaluation of the risk of infection to Wisconsin citizens could cause the rate of infection to spike, deteriorating the progress that has been made, and potentially triggering extensive spread of COVID-19.”

Rep. Joan Ballweg, R-Markesan, the co-chair for the Joint Committee for Review of Administrative Rules, which has the authority to inspect and throw out administrative and emergency rules, said she would like to see the administration and legislature work toward a long-term plan while local governments handle the right now.

As for that long-term vision, she said she would like to see proposals – such as one offered by the business group Wisconsin Manufacturers and Commerce – factored in.

“I’m sure the department is interested in taking a look at what they currently had in effect,” she said. “I think it’s clear that the public is beyond some of the things that are currently in the rule.”

Until a new emergency rule is established, many local governments have stepped in to advise the people who live in their municipalities on what to do next.

“That’s the responsible thing to do,” said Democratic Lt. Gov. Mandela Barnes. “And we want to work with local governments to help them come up with a set of guidelines so they can address the matter as they need to, as they see fit.”

County governments and the governor’s legal counsel said these county-wide orders are legal.

Local public health officers are allowed to close businesses and potentially keep people home, according to University of Wisconsin Law School professor David Schwartz, but he said that doesn’t guarantee the orders can stick because he said what DHS did was permitted under law too.

“We could get the same kind of legal dispute as to city and county orders,” Schwartz said. “So the Supreme Court’s decision imposes a layer of uncertainty on top of the entire situation.”