18th Annual Workplace Class Action Report - 2022 Edition

438 Annual Workplace Class Action Litigation Report: 2022 Edition resolving the claims. For these reasons, the Court of Appeals held that the trial court did not err in granting Plaintiff’s motion for class certification and it affirmed the ruling. Tavern League Of Wisconsin, et al. v. Palm, 2021 Wis. LEXIS 53 (Wis. April 14, 2021). Plaintiffs, a group of business establishments, filed a class action after the Wisconsin Department of Health Services (“DHS”) issued Emergency Order 3 as a response to the COVID-19 pandemic, which limited the size of indoor public gatherings either to 25% of a facility’s permitted capacity or, if no general capacity limit was prescribed, 10 people. The order listed entities that were exempt from its public gathering limits, including childcare settings, schools and universities, governmental and public infrastructure operations (including food distributors), and places of religious worship. Emergency Order 3 was enforceable by civil forfeiture provisions. Plaintiffs alleged that Emergency Order 3 was an order of general application, and in other words, was tantamount to a rule. As such, Plaintiffs alleged that because the DHS did not undertake proper rulemaking procedures under Wis. Stat. Ch. 227, Emergency Order 3 was invalid. Plaintiffs sought: (i) a declaration that Emergency Order 3 was unlawful; and (ii) a temporary injunction barring its enforcement. The trial court denied Plaintiffs’ request for injunctive relief based on its determination that Plaintiffs did not have a reasonable probability of success on the merits. The trial court further held that enjoining Emergency Order 3 would disrupt the status quo and there was no proof that Plaintiffs were harmed by the order because they offered no evidence that they were in compliance with it. Accordingly, the trial court denied Plaintiffs’ request for injunctive relief. On Plaintiffs’ appeal, the Wisconsin Court of Appeals summarily reversed the trial court’s order. The Court of Appeals held that under the Wisconsin Supreme Court’s holding in Wisconsin Legislature v. Palm 2020 WI 42 (2020) , Emergency Order #3 was invalid and unenforceable as a matter of law. The Court of Appeals therefore held that Plaintiffs did in fact have a reasonable probability of success on the merits and were entitled to an injunction. On further review, the Supreme Court of Wisconsin granted the DHS’s petition for review. Thereafter, the Supreme Court addressed whether Emergency Order 3 was a rule. At the outset the Supreme Court held that Emergency Order 3 was beyond the power that the Legislature delegated to the DHS. As such, this satisfied the great public importance mootness exception, and the Supreme Court declined to dismiss the appeal. In addition, the Supreme Court ruled that Emergency Order 3 met the definition of a rule, as it had recently explained in Palm. Therefore, the Supreme Court held that Emergency Order 3 should have been promulgated according to rulemaking procedures set forth in Wis. Stat. Ch. 227. Because the rulemaking procedures were not followed, the Supreme Court held that Emergency Order 3 was not validly enacted and was unenforceable. For these reasons, the Supreme Court affirmed the decision of the Court of Appeals.