Legislative agency critical of indoor gathering orders says it’s still ‘enforceable’

MADISON, Wis. (WMTV) - The government agency GOP legislative leaders cited when they declared the state’s new emergency order on indoor gatherings was unenforceable issued a follow-up statement Thursday clarifying the mandate’s status.

The non-partisan Legislative Reference Bureau stated any order, even one where the enforceability is questioned, remains in effect for its duration – unless a court rules otherwise.

Senior coordinating attorney Tamara Dodge explained the indoor gathering order will, in fact, be enforceable until it expires on November 6, Dept. of Health Services' Secretary-designee Andrea Palm ended it early, or a court ruling either enjoins it or strikes it down.

Democratic Minority Leader Sen. Janet Bewley had asked the Bureau for the clarification. She accused Republicans of trying to convince people the order could not be enforced, adding “that’s just not true.”

“The public deserves better than these underhanded attempts to undo every action Governor Evers has taken to keep people safe,” she continued.

On Wednesday, Majority Leader Sen. Scott Fitzgerald and Speaker Robin Vos issued a joint letter specifically citing a previous memorandum, also written by Dodge. In it, she determined a court using the precedent set by the state Supreme Court in the battle the Safer at Home order, which was issued early in the state’s battle against coronavirus, would similarly strike this order down.

In the Safer at Home case, the justices found that by extending the previous Safer at Home order violated DHS' emergency powers. They ended the order and told health officials they would have to go through the rule-making process instead. Following the Supreme Court decision vacating Safer at Home, Evers and the health department initially took steps to create a rule, but soon dropped it.

Dodge contends DHS would need to go through the process of creating a rule, which involves public comment and the legislature, for this new order too. The Evers Administration, however, claims the order fits withing the parameters of the justices ruling.

With that memorandum in hand, Vos and Fitzgerald argued that because it was the order affects everyone who lives in the state and DHS did not follow the rule-making procedures, the agency could not enforce it.

In Thursday’s memorandum, Dodge stated anyone challenging whether DHS could enforce would need to petition a court. She declared state law details “specific procedures” for legal disputes to be settled.

Bewley also criticized a statement Vos made Wednesday in which Speaker said the legislature and executive branch should work together to battle the pandemic, saying “Republican leaders… have been to court more times than they have been to the floor since this pandemic hit.”

“Instead of legislating, they have chosen to spend their time litigating,” she added.