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Ex. DUT-WI-017 Standing duty Primary source read

Interim Attorney General Opinion OAG-03-20 to Outagamie County Executive Thomas Nelson

Effect of Wisconsin Legislature v. Palm, 2020 WI 42, on local health officers' powers under Wis. Stat. § 252.03 to issue orders responding to COVID-19

Joshua L. Kaul, Attorney General of Wisconsin (Wisconsin Department of Justice) · Wisconsin (State)

The COVID Project

The record

Jurisdiction
Wisconsin
Level
State
Authority
Wis. Stat. §§ 165.25(3), 59.42(1)(c) (opinions to county officials); interim opinion issued outside the ordinary comment process because of the emergency (¶ 8)
Issued
2020-05-15 May 15, 2020
Effective
2020-05-15
End
n/a (opinion; confirmed by Becker v. Dane County, 2022 WI 63, Ex. WI-024) (read as 2021-09-30)
In force
May 15, 2020 to Sept. 30, 2021
Quarters
2020 Q22020 Q32020 Q42021 Q12021 Q22021 Q3
Limitation types
Business closureGathering capOther
Addressees
  • local health officers and local governments (the addressees); all businesses and persons within their orders
Character
agency interpretation
Collection
Standing duties: Wisconsin DUT-WI

Operative words

That statute does not govern the authority of local health officers, which is separately set out in Wis. Stat. § 252.03. That separate grant of local authority provides, among other things, powers to "prevent, suppress and control communicable diseases" and "forbid public gatherings..."... the Palm decision is not directly controlling on powers under the latter statute.

Penalty

n/a (opinion); enforcement of local orders by ordinance forfeiture as recommended (Dane County Ordinance § 46.40; Madison Municipal Ordinance § 7.05(6); Ex. MET-MKE-006 § 9), upheld in Becker.

What it required

Told every county and municipality, two days after Palm, that § 252.03 orders remained lawful ('nothing in the supreme court's decision... limits other measures directed by a local authority under Wis. Stat. § 252.03,' ¶ 7), that Palm's rulemaking analysis under ch. 227 and 2011 Act 21 'apply only to state agencies' (¶ 6), and that enforcement should proceed 'to ordinances or administrative enforcement' rather than § 252.25 criminal penalties (¶ 5); the counties and cities then issued the orders that bound businesses through Q3 2021. Character as recorded: agency_interpretation (Attorney General opinion).

Retrieval note

The live DOJ URL now returns an HTML page. Footnote 2 of the opinion: Palm 'does not apply to Section 4.a. of Safer at Home, which closes schools pursuant to Wis. Stat. § 252.02(3),' citing Palm ¶ 58 n.21. Footnote 1: local emergency powers under §§ 323.11 and 323.14 are additional and not addressed.