Lawsuit challenges Evers’ latest health emergency

Legal experts cast doubt on argument that governor can’t use emergency powers more than once in a crisis

Gov. Tony Evers
Gov. Tony Evers speaks at a July 30 media briefing when he announced a new state health emergency, including a statewide mask order, to curb the spread of COVID-19. Evers declared a new health emergency and issued a new mask order on Tuesday, Sept. 22. (Screen shot from WisconsinEye)

A conservative public policy law firm filed suit Tuesday to overturn Gov. Tony Evers’ July 30 health emergency declaration, and with it the statewide mandatory mask requirement.

The Wisconsin Institute for Law and Liberty (WILL), which has been involved in several challenges to Evers’ powers as governor, sued on behalf of three Wisconsin residents. The suit asks the court to throw out the emergency declaration.

In his Executive Order No. 82, issued July 30 and taking effect Aug. 1, Evers declared a public health state of emergency in response to a spike in COVID-19 cases beginning in June and continuing through July. As part of that declaration, he instituted a mandatory statewide mask order.

At the root of WILL’s lawsuit is an argument that because the COVID-19 pandemic wasn’t first eradicated sometime between the governor’s previous public health emergency order, which began March 12, and the new order, it is an illegal extension of the first one.

Two law professors told the Wisconsin Examiner on Tuesday that the lawsuit’s claim has no basis in the state law empowering the governor to declare an emergency.

Evers declared the first public health emergency March 12; it expired May 11, having reached a 60-day limit. Under that emergency, and at Evers’ direction, Department of Health Services (DHS) Secretary-designee Andrea Palm instituted the state Safer at Home order March 25 to reduce travel and interaction among people in order to curb the spread of the pandemic. The order was extended April 26, but on May 13, after Republican leaders in the state Legislature sued to block the extension, the state Supreme Court threw out the Safer at Home order on a 4-3 vote.

The court majority agreed with the legislative leaders’ argument that the Safer at Home public health order had to be treated as an administrative rule requiring the Legislature’s consent, although the law applying to public health emergency orders makes no mention of that.

WILL’s lawsuit asserts the July 30 executive order and public health emergency is simply an extension of the March 12 order, which after its 60-day limit could only be extended with the consent of the state Legislature.

The lawsuit argues that the second state of emergency arose “from the same underlying health conditions” as the first. Because Evers never declared the pandemic that sparked the earlier order to have been suppressed — and there could be no “reasonable claim” that it had been — Evers cannot claim it is “a new and different public emergency,” the lawsuit states.

“The Governor lacks the power to unilaterally extend a state of emergency or to declare multiple states of emergency to deal with the same problem,” the lawsuit declares.

Polk County — where two of the three plaintiffs live, and where the suit was filed — hasn’t been “greatly impacted” by COVID-19, with 156 confirmed cases as of Monday, Aug. 24, and two deaths, the lawsuit states. Polk County’s population is about 43,600.

Each of the three plaintiffs, the suit states, “is required to follow the mandates of Emergency Order #1” — the mask order — “and any other orders issued by the Governor, based on the emergency powers that are being unlawfully exercised as a result of Executive Order #82.”

It also argues that the order violates the Wisconsin Constitution, which reserves lawmaking to the Legislature. It claims that if the court concludes that the law authorizing the declaration allows the governor “to unilaterally extend the state beyond 60 days, or to declare new states of emergency for the same public health emergency, and to exercise emergency powers otherwise unavailable to him beyond 60 days, then it is an unconstitutional delegation of legislative power to the executive.”

Despite the lawsuit’s explicit reference to plaintiffs being required to wear masks, WILL President Rick Esenberg stated, “This lawsuit is not about whether masks are good or bad, or whether Wisconsin ought to do more, or less, to address COVID-19,” but rather the limits of the governor’s power.

But the governor’s office sharply dismissed the lawsuit’s assertions.

“Republicans and their allies have tried at every turn to prevent the governor from keeping Wisconsinites healthy and safe,” said Evers’ deputy communications director, Britt Cudaback. “From Safer at Home to the April election” — when the state Supreme Court rejected an 11th-hour effort by Evers to postpone voting to allow for more time for voters to vote by mail — “and now masks, they’ve filed more lawsuits than they have passed bills during this pandemic.”

Cudaback added: “We know requiring masks and face coverings will help us save lives, and Gov. Evers will continue listening to science and public health experts in making the best decisions for the people of our state.”

Edward Fallone, Marquette University Law School (Marquette University photo)

Edward Fallone, a Marquette University law professor who has previously run for the Wisconsin Supreme Court, says the assertions that WILL makes in the lawsuit aren’t supported by the language of the state law authorizing governors to declare an emergency,

“They are seeking to impose a restriction upon the governor’s emergency power that is not contained in the language of the statute,” Fallone said of WILL. “They are making it up.”

When an emergency occurs and a state of emergency is declared and then expires, “there can be a second flare-up or change in circumstances requiring a new emergency declaration,” he said. “There’s nothing in the statute that would prevent that from happening. And indeed, one would only have to pause for a second to realize that of course, a statute granting broad emergency power should allow the governor to react to changes in circumstances.”

The wider spread of COVID-19 throughout the state is a direct example of such a change in circumstances, he said.

David Schwartz, a University of Wisconsin Law School professor, agreed.

David Schwartz
David Schwartz, University of Wisconsin Law School (UW photo)

Schwartz said that the lawsuit’s argument “might make more sense if the governor was acting in bad faith” — for instance, by instituting a new order the day after a previous one expires. 

“The governor is not limited to one emergency order per crisis,” Schwartz said.  “The idea of one emergency order per crisis doesn’t make a lot of sense, because there can be a lot of changes in circumstances over time within a crisis. And I think that’s what’s going on here.”