State Supreme Court hears arguments over governor’s emergency powers

Case could end latest pandemic health emergency — and with it, state mask requirement

Wisconsin Supreme Court chambers at the Capitol
Supreme Court chamber, Wisconsin State Capitol, Madison, Wisconsin. "Supreme Court chamber through the cast iron doors. Mural by Albert Herter depicts signing of U.S. Constitution." by Photo Phiend via Flickr CC BY-NC-ND 2.0

The state’s current mask requirement — and Gov. Tony Evers’ power to declare new states of emergency because of the COVID-19 pandemic — were on the line Monday as the Wisconsin Supreme Court heard arguments over a lawsuit to block that power.

At issue in the case, Fabick v. Evers, is whether the governor can declare a new health emergency more than once during the pandemic. The case before the high court is the second of two that have been filed, making similar arguments that the state’s chief executive has only one chance to act unilaterally, regardless of how the pandemic changes circumstances on the ground.

The Wisconsin law that empowers a governor to declare an emergency and issue related orders states that the overall declaration expires after 60 days, unless the Legislature agrees to extend it.

In the early weeks of the COVID-19 pandemic, Evers declared a state of emergency on March 12 that expired May 11. The emergency was separate from the state’s March 25 Safer at Home health order, which the state Supreme Court threw out on a 4-3 vote on May 13.

On July 30, Evers declared a new emergency and, as part of that declaration, issued a statewide mask mandate effective Aug. 1, citing a new surge in COVID-19 cases. On September 22, after another surge that began when colleges and universities around the state opened in-person classes for the fall semester, the governor declared a third state of emergency and issued a new mask order. The latest emergency and mask order expire Saturday, Nov. 21.

“Those orders represent an unlawful end run around the Legislature’s 60-day limit on [the governor’s] the exercise of emergency powers,” attorney Matthew Fernholz told the Wisconsin Supreme Court justices Monday morning. “This court should declare these orders unlawful and void.”

Fernholz represents Jeré Fabick, a Waukesha County resident, who took his lawsuit against Evers directly to the state Supreme Court, bypassing lower courts. Fabick is affiliated with the rightwing Heartland Institute, which has opposed a broad array of government regulations.  

“The March, July and September declarations all relate to COVID-19,” Fernholz said. “And so to extend it beyond 60 days, he needs permission from the Legislature.”

The Evers administration contends that the state law authorizing an emergency declaration allows for new declarations arising from new, changed circumstances.

The state law’s 60-day limit on any particular order “does not in any way limit the governor’s ability to recognize when emergency circumstances are present,” said Hannah Jurss, an assistant state attorney general arguing for the administration.

She offered the example of a flood that prompts a state of emergency order, which both the Legislature and the governor believe has been resolved. Toward the end of the 60-day period, “new rainfall happens and the flooding resurges and a dam breaks,” Jurss said. “There is nothing in the plain language of the statute that says the governor could not look at those emergency circumstances and recognize that there is an occurrence that constitutes a disaster that creates an emergency.”

In defending the governor’s declarations, the administration contends that new surges of COVID-19 should be viewed as separate events that warranted new, and independent, emergency declarations. Justice Rebecca Dallet brought up that argument as she questioned Fernholz.

“Let’s just say, hypothetically, all of our hospitals are overrun,” said Dallet, “which actually is literally happening.” Was Fernholz arguing, she asked, that “because one emergency was issued … the governor could do nothing in terms of declaring a state of emergency because the hospitals have been overrun, which could be another occurrence?”

Fernholz allowed that under  “a targeted scenario of short supply of hospital equipment, the governor could issue a separate order that is targeted to the specific problem. But that’s not what Gov. Evers did here.”

Justice Jill Karofsky suggested that for the pandemic to be considered “the same underlying condition,” as Fernholz was arguing, “to me would mean that the numbers would, at least, stagnate.” Instead, she pointed out, the July order and the September order each followed sharp increases in the numbers of COVID-19 cases.

Replied Fernholz: “It is all stemming from the same public health emergency.”

Both Justices Annette Ziegler and Rebecca Bradley, in questioning the attorneys, suggested that the Evers administration would have had the opportunity after the first emergency expired to seek an extension on that order from the Legislature.

Evers “did not seek or receive an extension from the Legislature beyond 60 days,” Fernholz told Ziegler.

Once the 60-day limit expires, Rebecca Bradley suggested, “it falls to the Legislature to pick that up and either work with the governor or allow the governor to continue to exercise those powers or just act as a body in and of itself.”

An earlier lawsuit challenging Evers’ subsequent emergency declarations and the mask orders, filed by the conservative law firm the Wisconsin Institute for Law and Liberty (WILL) on behalf of three Wisconsin residents, is currently pending in Polk County Court, but on hold as a result of the Fabick case. WILL’s president, Rick Esenberg, was allowed to submit a friend-of-the-court brief in the Fabick case and take part in Monday’s arguments.

Karofsky, questioning Esenberg, observed that the Legislature had opportunities to meet after the second and third emergency declarations to override them and had not done so.

Esenberg said that had no bearing, however. “The Legislature doesn’t get to abdicate its authority,” he said.

Requiring the Legislature to act to block the additional emergency declarations “flips it on its head,” Fernholz said. “It is not for the Legislature to convene in a special session and say we do not approve the governor violating the law. The governor is the one that needs to seek approval from the Legislature.”

The court went into closed session discussion Monday afternoon.