The Wisconsin Supreme Court ruled on Wednesday that the Department of Health Services (DHS) lacked authority to limit capacities for indoor public gatherings.

DHS issued Emergency Order 3 in October in response to COVID-19, which “limited the size of indoor public gatherings either to 25 percent of a facility’s permitted capacity or, if no general capacity limit was prescribed, to 10 people.”

The Tavern League of Wisconsin, along with other businesses, challenged Emergency Order 3, arguing that the order was invalidly enacted. The Tavern League explained that the order was “a general order of general application … in other words, it [was] a rule.” Thus, the Tavern League claimed the order was invalidly enacted because it required rulemaking procedures based on the Wisconsin Supreme Court’s decision in Wisconsin Legislature v. Palm.

DHS asserted that Emergency Order 3 was not a rule because it was issued under Wis. Stat. § 252.02(3), which “confer[s] well-delineated statutory power” to “close schools and forbid public gatherings in schools, churches, and other places to control outbreaks and epidemics.” Moreover, DHS argued that the order was not a rule under the court’s Palm analysis.

In a 4-to-3 decision, the Wisconsin Supreme Court found that the order was invalidly enacted and met the definition of a rule. Wisconsin Stat. § 227.10(1) provides that “[e]ach agency shall promulgate as a rule each statement of general policy and each interpretation of a statute which it specifically adopts to govern its enforcement or administration of that statute. Thus, “a general order of general application” must follow rulemaking procedures. The court further explained that DHS’s action met all of the following Palm criteria for a rule:

(1) a regulation, standard, statement of policy or general order; (2) of general application; (3) having the effect of law; (4) issued by an agency; (5) to implement, interpret or make specific legislation enforced or administered by such agency.

As a result, the court held that “Emergency Order 3 should have been promulgated according to rulemaking procedures set forth in Wis. Stat. ch. 227. Because it was not, Emergency Order 3 was not validly enacted and was unenforceable.”