Tavern League v. Palm Decisionposted on April 15, 2021
The Wisconsin Supreme Court issued its long awaited opinion in the Tavern League v. Palm lawsuit challenging then-Department of Health Services Secretary Andrea Palm’s Emergency Order 3, which limited indoor public gatherings to 25 percent of a facility’s fire code capacity and 10 persons otherwise (with some exceptions). That order was first enjoined by the court of appeals, and subsequently expired, but the case is important because it better defines the authority of the governor and his administrative agencies to make law outside of the legislative process.
Emergency Order 3 was challenged by a series of businesses and associations arguing Secretary Palm did not have the authority to issue these capacity restrictions as an order because it was an unpromulgated rule. The Court ruled on a nearly identical fact scenario and legal issue last year in Legislature v. Palm. Similar to Palm, the take away from Tavern League is that Governor Evers’ administrative agencies must go through the rulemaking process when taking an agency action to implement or interpret legislation with the force of law against a class of people or entities. The ruling is a victory for government transparency and the rule of law.