March 31, 2021 – The Wisconsin Supreme Court today, in a 4-3 decision, concluded that Gov. Tony Evers exceeded his authority when declaring a public health emergency due to COVID-19, extending previous orders, without the legislature’s consent.

Under emergency declarations, the governor may issue other orders deemed necessary for the security of persons or property. One order was a controversial statewide mask mandate, requiring masks in enclosed spaces open to the public, with some exceptions.

Petitioner Jere Fabick filed an original action petition to the supreme court last November, challenging the validity of two executive orders under Wis. Stat. section 323.10, which relates to the governor’s authority to issue states of emergency.

That provision says a state of emergency, so declared, “shall not exceed 60 days, unless the state of emergency is extended by joint resolution of the legislature.”

In Fabick v. Evers, 2021 WI 28 (March 31, 2021), a majority ruled that Wisconsin law does not give the governor authority to successively declare public health emergencies.

The majority acknowledged that “COVID-19 presents a public health emergency that enables the governor to declare a state of emergency related to public health under § 323.10,” but noted that only the legislature can extend the state of emergency.

“The plain language of the statute explains that the governor may, for 60 days, act with expanded powers to address a particular emergency,” wrote Justice Brian Hagedorn.

“Beyond 60 days, however, the legislature reserves for itself the power to determine the policies that govern the state's response to an ongoing problem.”

Similarly, Justice Hagedorn noted, “when the legislature revokes a state of emergency, a governor may not simply reissue another one on the same basis.”

In February, the Legislature voted to terminate the emergency declaration then in effect, along with related orders issued under the state of emergency declaration. Shortly after that, Gov. Evers declared a new state of emergency, reinstating the mask mandate.

Under the majority’s decision, Gov. Evers did not have the power to do that. Chief Justice Patience Roggensack, Justice Annette Ziegler, and Justice Rebecca Bradley joined Justice Hagedorn to form a four-justice majority. 

The majority concluded that section 323.10’s provisions “forbids the governor from declaring successive states of emergency on the same basis as a prior state of emergency, and that the governor may not reissue a new emergency declaration following legislative revocation of a state of emergency declared on the same basis.”

The majority rejected the governor’s argument that the state of COVID-19 keeps changing, with different “on-the-ground” facts, so there were independent enabling conditions for each of his public health emergency declarations.

“We recognize that determining when a set of facts gives rise to a unique enabling condition may not always be easy,” Justice Hagedorn wrote.

“But here, COVID-19 has been a consistent threat, and no one can suggest this threat has gone away and then reemerged.

“The threat has ebbed and flowed, but this does not negate the basic reality that COVID-19 has been a significant and constant danger for a year, with no letup.”

The majority declared that Executive Order 105, the public health emergency declaration issued after the legislature revoked the previous one, is void.

Concurrence and Dissent

Justice R. Bradley wrote a concurring opinion, joined by Chief Justice Roggensack, addressing the “constitutional infirmities of Governor Evers’ interpretation of the law” with a discussion on the separation of powers embedded in the state constitution.

“The people of Wisconsin adopted the same separation of governmental powers in our state constitution,” Justice R. Bradley wrote. “We sustain this separation of powers without exception, even in a pandemic.

“Accordingly, this court does not consider the prudence of particular measures to address the pandemic; such policy decisions rest with the legislature, not the judiciary. This case is about who has the power to make those decisions.”

Justice Ann Walsh Bradley wrote a 27-page dissent, joined by Justices Rebecca Dallet and Jill Karofsky, concluding the majority “arrives at erroneous conclusions.”

“Unfortunately, the ultimate consequence of the majority's decision is that it places yet another roadblock to an effective governmental response to COVID-19, further jeopardizing the health and lives of the people of Wisconsin,” A.W. Bradley wrote.

First, the dissenters concluded that Fabick did not have standing and the majority overruled “more than a century of taxpayer standing cases” in granting review.

Second, the dissent concluded that the majority was without authority to strike down Executive Order 105 because that order was not properly before the court.

Third, the dissenting justices concluded that the majority’s analysis was wrong because “a plain language analysis establishes that emergency declarations are permissible when, like the orders at issue here, they are based on separate statutory ‘occurrences,’ even if those occurrences share the same underlying cause.”

“The majority misses the mark when it fails to recognize that the key word for analysis in this case lies in the statutory definition of a ‘public health emergency’ provided by Wis. Stat. § 323.02(16),” Justice Bradley wrote. “That key word is ‘occurrence.’ Instead, the majority puts on blinders and does not engage with the term at all.”

Under Wis. Stat. section 323.02(16), “public health emergency” means “the occurrence or imminent threat of an illness or health condition” that poses a high probability of widespread exposure with significant risk of substantial future harm, or poses a high probability a largescale deaths or serious or long-term disabilities among humans.

Applying an established definition of “occurrence” to the emergency orders at issue, the dissent concluded that “it is apparent that each is based on a new set of on-the-ground facts, with each new set of facts posing a high probability of either. …”