“Emergency Order 28 is declared unlawful, invalid, and unenforceable.”

Hey look. The Supreme Court agrees with me. Go about your business, folks.

IV. CONCLUSION

¶58 We conclude that Emergency Order 28 is a rule under the controlling precedent of this court, Citizens for Sensible Zoning, Inc. v. DNR, 90 Wis. 2d 804, 280 N.W.2d 702 (1979), and therefore is subject to statutory emergency rulemaking procedures established by the Legislature. Emergency Order 28 is a general order of general application within the meaning of Wis. Stat. § 227.01(13) which defines “Rule.” Accordingly, the rulemaking procedures of Wis. Stat. § 227.24 were required to be followed during the promulgation of Order 28. Because they were not, Emergency Order 28 is unenforceable.21 Furthermore, Wis. Stat. § 252.25 required that Emergency Order 28 be promulgated using the procedures established by the Legislature for rulemaking if criminal penalties were to follow. Because Palm did not follow the
law in creating Order 28, there can be no criminal penalties for violations of her order. The procedural requirements of Wis. Stat. ch. 227 must be followed because they safeguard all people.

¶59 We further conclude that Palm’s order confining all people to their homes, forbidding travel and closing businesses 21 This decision does not apply to Section 4. a. of Emergency Order 28.  exceeded the statutory authority of Wis. Stat. § 252.02, upon which Palm claims to rely. By the Court.—Palm’s Emergency Order 28 is declared unlawful, invalid, and unenforceable.

Most disappointing is that Justice Hagedorn voted in the minority with a ridiculous rationale. This comes after he went lefty on taking up the ballot issue a few months ago. Make no mistake, once Justice Kelly leaves the court, this is now a 4-3 LIBERAL Supreme Court.

39 Responses to “Emergency Order 28 is declared unlawful, invalid, and unenforceable.”

  1. jonnyv says:

    Now we will see how many businesses open up voluntarily.

    There will still be recommendations about how many people & whether masks should be worn in businesses.

  2. Owen Owen says:

    That’s fine. Individuals and individual business owners making their own choices. It is almost like living in a free country.

  3. Merlin says:

    Palm’s good intentions were apparently not good enough to supersede the law. Kudos to the SC for not offering to “fix” the problem for her and simply throwing it back at her to try again according to the law, regardless how inconvenient that might be.

  4. jonnyv says:

    While the court decision is a small loss for Evers administration. Overall this can easily be spun into a win in hindsight. If things end up fine, he gets to say that his leadership and decisions helped us make it thru the toughest time. If things go south and we see a spike, he can spin it against the R’s in the legislature for fighting him.

    I am clearly hoping for the former.

  5. Pat says:

    Wisconsin’s open for business. Open the bars and restaurants and get ready to party like it’s 1999!

    https://youtu.be/rblt2EtFfC4

  6. jjf says:

    And cities can make rules, too, no?

  7. Kevin Scheunemann says:

    You libs, I can sense your sadness.

    It makes me very happy your petty tyrant plans were rejected.

  8. Jason says:

    >Overall this can easily be spun into a win in hindsight.

     

    I see Dummycrats trying to learn from Trump.  Ha ha, irony is so delicious.

  9. Jason says:

    If any of you dummies think this phrasing

    “an agency cannot confer on itself the power to dictate the lives of law-abiding individuals as comprehensively as the order does without reaching beyond the executive branch’s authority”

    can be spun into a positive, or a win, you are drinking koolaid right from the honey truck.  ENJOY, as this was a bitch slap from on high.  Andrea Palm is done, and Evers is One-And-Done.

  10. MjM says:

    Priceless…..

    “¶39 Palm asserts that Order 28 is not a rule, yet she also asserts Wis. Stat. § 252.25 endows her with the power to create criminal penalties for violations of Order 28. Her argument stands § 252.25 on its head. This is so because criminal penalties can arise from a rule violation only when the rule was properly promulgated.”

    What you get when a Master of Social Work from WU-St.Louis pretends to be a Harvard Law grad.

  11. Mar says:

    “What you get when a Master of Social Work from WU-St.Louis pretends to be a Harvard Law grad.”
    Priceless.

  12. Mar says:

    It’s a good day today.
    Arizona was freed, my home state.
    Wisconsin is freed, my born and raised state.
    And I am in California, on a beach with about a hundred other people, saying screw you to Gavin Newsome.

  13. MjM says:

    Dems just wanna be ChiComms.

    Recounted from May 5 oral arguments…
    ===========

    Court: . . . [T]he Secretary can identify behavior that is not otherwise criminal and . . . she can all by herself sit down at her computer keyboard, write up a description of behavior and make it criminal, correct?

    State’s counsel: Yes. The scope of available enforcement is determined by the order. Yes. . . . That’s true.

    ========

    If you are in need of dose of disgust, read Bradley’s as-usual unprofessional, hate-filled, and factless dissent.

  14. jonnyv says:

    Jason, you clearly don’t understand how politics works. No one is gonna remember WHY it was slapped down. Almost NO ONE will read WHY it happened, all they will know is that it happened. No, this isn’t learning from Trump, as the only thing that can be learned from him is immaturity, and awful spray tanning techniques.

    This is politics 101. How will you spin it during the next election cycle. Good luck getting your information across in a 15 second ad. But it is REALLY easy to say that Evers guided us thru a once in a lifetime pandemic and had minimal deaths compared to similar midwestern states. That simple. You may not agree with it, but that is how it will be sold to the public. And like I said, it will be even worse if we see a spike in cases now, for the Republicans.  Short term loss, very simple.

  15. Merlin says:

    There isn’t enough time between now and November for the voters economically harmed by the lockdown to recover, let alone forget about who put the lockdown on them. Republicans won’t let them forget. Add to the current economic pain the fact that Evers is going to have to begin reconciling the pandemic’s impact on the state’s revenue shortfall. Republicans will hang the talk of tax increases around Evers’ neck as well. Evers is and will continue to be the face of this mess.

    Evers had the time and opportunity to do the lockdown continuation in a legal manner. The choice to circumvent the legal rules promulgation process was born of either ignorance and/or arrogance, but they alone chose the path of unshared responsibility with the legislature. It didn’t have to go this way.

  16. Mar says:

    One Hope’s that businesses will continue to practice good hygiene.
    Before the Chinese virus hit, how many stores actually disinfected their grocery carts? Very few, if any. Now, they all do. How many wiped down shelves or cleaned the bathrooms very often? Not many but now all do.
    This will help curb a potential surge of cases that were caused by unclean businesses.

  17. Mar says:

    It looks like Dane County is the only county that is still restricting the rights of their citizens.
    How many people think Dane County residents will stay at home and still isolate instead going to a neighboring county and going to a restaurant or bar or shop inside a store?
    This is really going devastate Dane County businesses.

  18. MjM says:

    Wizard asserts: There isn’t enough time between now and November for the voters economically harmed by the lockdown to recover, let alone forget about who put the lockdown on them.

    Excellent point.  And I would add, “…by way of fraudulent ‘science’ and attempted to keep them locked down indefinitely by illegal edict.”

    JohnBoy’s 15 second poli ad writes itself.

  19. Jason says:

    I just saw a study done by a few Uni’s collaborating, one of them was UIC…. forecasting that  over 100,000 small business nationwide will never re-open.  That is just jaw dropping.

  20. Pat says:

    There are 30.2 million small businesses in the US. Annually 1 in 12 go out of business.
    Is the 100,000 in addition to the 1 in 12 or just a part of?

  21. jonnyv says:

    While it is unfortunate about any small business that goes out of business, but shouldn’t they have had 3 or 4 months worth of emergency funds? Like a responsible citizen? I was fortunate to keep working thru this, but if I hadn’t, I have a year’s worth of mortgage available to me in savings and investments I could have dipped into.

  22. Mar says:

    jonnyv, that might be nice for you but not many new businesses have that kind of money laying around.
    Are you a small business owner? If so, how long did it take you when you first started to get 3 or months of expenses saved up? That includes your living expenses, your rent, insurance, utilities etc.

  23. jonnyv says:

    Mar. I have a corporate job as well as own a small live streaming production business. So I am in a unique situation. My side business lost out on about $20K worth of business. But I also don’t have any full time employees to worry about right now.

    But guess what. It doesn’t matter. If I buy a house and 2 months later I am laid off from my job, the bank doesn’t care that I didn’t have a savings. This is the same with small business. I think that EVERY business should be able to weather a 3 month storm. If you can’t, then maybe you shouldn’t be in business. It sounds very heartless, but it is just factual. Again, I don’t want to see anyone go out of business, it doesn’t do anything for the economy when that happens. But, we seem to have very little compassion when we hear that an individual is living paycheck to paycheck and falls on hardship, but when a business is doing it… crickets.

  24. Mar says:

    In general, I agree with you, jonnyv. But this Chinese virus caught so many people off guard, especially when you are open 1 day and then forced to close the next.
    Of course some might have gotten the grant from the government, so that helps.

  25. jjf says:

    Mar, I think you’re catching on.  They call them unexpected eventualities because they’re unexpected.

    Pat, yes, there are zillions of “businesses” in the US.  Many are very small and created essentially for tax purposes.  Presto!  Everything you buy at Sam’s Club is now tax-free.

  26. Mar says:

    Loopholds, jjf, say it ain’t so.
    How many people actually enjoy paying taxes?

  27. Mar says:

    Well, Milwaukee County is going to put major hindrances for its citizens to go to local businesses
    Sucks to a business person in Milwaukee County when people can travel to Waukesha, Racine,Ozaukee and other counties to enjoy going to a bar or eat inside a restaurant. Or go to a store without waiting in lines.

  28. jjf says:

    Mar, common sense should tell a person not to do that.

  29. MjM says:

    JonnyV thinks the world is he:   So I am in a unique situation  – BUT –  EVERY business should be able to weather a 3 month storm

    I noticed you didn’t answer Mar’s question: how long did it take you when you first started to get 3 or months of expenses saved up?

    The contradictions in your comments are interesting…

    I have a corporate job

    Why do you need a ‘corporate job?  Can’t your business alone support you? How long would you last without that ‘corporate job?

     I also don’t have any full time employees to worry about right now.

    Why?  What happened to them? Did you furlough them or instead fire them so as not to have to pay benefits?  (Did you ever pay any benefits?)

    I have a year’s worth of mortgage available to me in savings and investments I could have dipped into

    Is this a business mortgage/investments  or residential/personal?  So you have your mortgage covered.  How would you pay for food?  Car insurance and repairs?  Utilities?  Toilet paper?

    Most ‘small’ businesses are full time operations.  Most ‘small’ businesses have employees – 5, 10, 30+ – that they’ve had to layoff,  or reduce hours for (in which case they are still paying workman’s comp, unemployment comp, SSI, benefits)  or furlough (in which case they are still paying for benefits).  Most ‘small’ businesses have buildings and properties and vehicles to maintain and have business insurance and Accounts Payable and rent or real estate taxes to pay.

    IOW,  most ‘small’ businesses are not merely a one-man truck patch.

     

     

     

     

     

     

     

  30. Jason says:

    >Is the 100,000 in addition to the 1 in 12 or just a part of?

    In addition to, as in caused directly by the “Safer at Home”, “Shelter In Place” etc orders.

  31. Jason says:

    > I have a corporate job as well as own a small live streaming production business. So I am in a unique situation. My side business lost out on about $20K worth of business. But I also don’t have any full time employees to worry about right now.

    You have a side hustle.  I was talking about legit small businesses that probably have employees, and this is the owners only source of income.   Humble bragging is not helping any of the 33 million unemployed people right now, JV.

  32. Mar says:

    “Mar, common sense should tell a person not to do that.”
    Human nature says a person should not be locked up like a house cat for 3 months either.

  33. jonnyv says:

    Jason & MJM. I own a small business with a friend. We will do about 100K annually in business. Profiting about 15-20K each after expenses.

    I have no employees because we contract out camera ops for gigs. It is how we keep overhead down. Most camera ops are contract workers anyway. Right now just means that I hope to have them in the future.

    I still have a full time job because I am smart enough to know WHEN to quit my job and go full time with my “side hustle”. My corporate job provides me financial security and insurance. I would love to walk away from corporate life and work exclusively for myself. But, I am fiscally conservative and don’t feel like it would be to my advantage to quit until I have enough work to sustain my current lifestyle and family obligations. That might be in 3 years, it might be in 7? I don’t know yet.

    And when I say I have a “years worth of mortgage”. That is just a general estimate, it could go for any of my expenses needed.

    But, you didn’t say anything to dissuade the argument that if a small business can’t weather 3 months of bad times, then they are not fiscally responsible.

  34. dad29 says:

    Jason and MjM cover it pretty well.  Paying for health insurance is a pretty good way to destroy a savings account…..

  35. jonnyv says:

    dad29. Good thing they are not forced to pay for it anymore. Remember.

  36. dad29 says:

    Oh, yah, Johnny……I forgot.  Just 1099 those people and hey!!  No SocSec, health insurance, no Medicare contribution, no FUCA or SUCA contributions, hell’s bells, running a biz is really CHEAP!!

     

  37. Kevin Scheunemann says:

    Jonnyv,

    No employees? How selfish are you?

    1099? Skirting paying your FICA. You evil capitalist pig?

    Why don’t you libs walk your talk.

  38. Jason says:

    Yeah JV… wow I thought jjf and Leroy were out of touch with just about every conversation that had been had on this blog, but you just came along and lowered that bar so much that I cant see it.

  39. Mike says:

    Justice Kelly takes the wood to Justice Hagedorn calling him out for insulting the other justices, footnote 11 in Kelly’s concurrence:

    Justice Hagedorn suggests that somehow it is ironic that we  should  pay  attention  to  the  constitutionally-mandated demarcation  between  the  legislative  and  executive  branches.Justice Hagedorn’s dissent, ¶252.  Apparently, in his view, there is to be no policing of this boundary unless we are prepared to dismantle the entire administrative state.  He condescends that “[i]f  we  are  going  to  have  a  serious  discussion  about  the separation of powers and its relationship to the administrative state,  I  welcome  that  conversation,”  insinuating  that  our reasoning  is  a  species  of  “it’s  good  for  me  but  not  for  thee” rationalizing.   Id.Justice  Hagedorn  doesn’t  provide  any justification for this insult, and there appears to be none.  As for   the   “serious   discussion   about   the   separation   of powers”…the invitation to that conversation was included in our oath  of  office,  wherein  we  swore  to  uphold  the  Wisconsin Constitution.He’s free to join in anytime he wishes.

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