State Supreme Court ends health emergency, mask order

Gov. Tony Evers’ successive health emergencies in response to the novel coronavirus responsible for COVID-19 were unlawful after the first one expired, the state Supreme Court ruled Wednesday, ending the current statewide mask requirement just a few days before it was due to expire.

The current health emergency declaration, Executive Order 105 — issued after the state Legislature revoked Evers’ previous health emergency — “exceeded the governor’s powers and is therefore unlawful,” states the 4-3 ruling, written by Justice Brian Hagedorn. The ruling came in a lawsuit filed with the high court directly by Waukesha County resident Jeré Fabick.

In a statement after the ruling was issued Wednesday, Evers said that Wisconsin residents should still wear masks to combat the virus.

“Our fight against COVID-19 isn’t over,” Evers stated. “While we work to get folks vaccinated as quickly as we can, we know wearing a mask saves lives, and we still need Wisconsinites to mask up so we can beat this virus and bounce back from this pandemic.”

According to the Supreme Court ruling, Chapter 323, the state statute governing emergency powers, limits the governor’s power to declare an emergency in response to a particular crisis to no more than 60 days without the Legislature’s approval. The three other members of the court’s conservative wing, Chief Justice Patience Roggensack and justices Rebecca Bradley and Annette Ziegler, joined Hagedorn in the decision. Roggensack and Rebecca Bradley also wrote a separate concurring opinion.

“When the governor employs those powers beyond the time limits imposed by the legislature, or after revocation of those powers by the legislature, he wields authority never given to him by the people or their representatives,” the ruling states. 

“We conclude that Wis. Stat. § 323.10’s duration-limiting language 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.”

In a dissent, Justice Ann Walsh Bradley warned that the decision “places yet another roadblock to an effective governmental response to COVID-19, jeopardizing the health and lives of the people of Wisconsin.”

The dissent, in which justices Rebecca Dallet and Jill Karofsky joined, argues that the majority ruling ignores the emergency powers statute’s reference to an “occurrence” for which an emergency is declared. The separate health emergencies that Evers declared “are premised on statutory occurrences that are distinct from each other,” the dissent states.