Wisconsin Supreme Court

Richard Hurd (CC-BY)

The Wisconsin Supreme Court has ruled against Gov. Tony Evers, striking down the governor’s ability to issue repeated emergency declarations related to the COVID-19 pandemic and ending the statewide mask mandate.

The long-awaited decision was released Wednesday morning, MARCH 31, more than four months after the court heard arguments in the case. The court ruled 4-3, with all conservative justices in the majority and liberal justices offering a dissent.

"The question in this case is not whether the Governor acted wisely; it is whether he acted lawfully," conservative justice Brian Hagedorn wrote in the court's majority opinion. "We conclude he did not."

The ruling immediately ends Wisconsin's statewide mask mandate. Local government mandates, where they exist, can remain in effect.

The lawsuit, brought by GOP donor Jeré Fabick, argued Evers overstepped his powers by declaring multiple states of emergency related to the same issue — the COVID-19 pandemic — without approval from the state Legislature.

Under state law, governors have the power to issue public health emergencies, but those emergencies can only last for 60 days, unless they are extended by the state Legislature. Evers has issued several emergencies related to the COVID-19 pandemic since last March. None of them have been extended by the Legislature.

In the majority opinion, Hagedorn wrote the decision isn't, and shouldn't be, about making sure the governor has the power to respond to the pandemic adequately or ensuring executive powers aren't too expansive — it is, he argued, about whether Evers followed the law.

"Whether the policy choices reflected in the law give the governor too much or too little authority to respond to the present health crisis does not guide our analysis," Hagedorn wrote. "Our inquiry is simply whether the law gives the governor the authority to successively declare states of emergency in this circumstance."

Evers, who was represented by the state Department of Justice in the case, argued his repeated declarations were warranted, as the pandemic has evolved and posed different threat levels since its appearance in the state last spring.

In the court's dissent, liberal justice Ann Walsh Bradley agreed with that argument.

"(The) Governor has not extended a pre-existing state of emergency, but instead has issued new emergency declarations based on new underlying occurrences," Bradley wrote.

She argued the majority's opinion would block the governor, and future governors, from issuing necessary emergency declarations related to the COVID-19 pandemic or other emergencies in the future.

"Imagine heavy rains leading to a flood that two months later causes a dam to break. If the governor declared a state of emergency because of the initial flooding, he could not issue another for the new flood caused by the dam failure because it shares an underlying cause with the previous state of emergency," she wrote of the majority opinion. "Surely, when enacted, the legislature could not have intended (the law) would be interpreted to place such a roadblock to effective governmental response to a worldwide pandemic."

The governor also pointed out state lawmakers have the power to revoke an emergency declaration if they want, a step GOP leaders didn’t choose to take until February. Evers immediately issued a new order following the repeal.

In a statement following the ruling, Evers urged Wisconsinites to continue wearing masks to slow the spread of the virus and save lives.

"Since the beginning of this pandemic, I’ve worked to keep Wisconsinites healthy and safe, and I’ve trusted the science and public health experts to guide our decision making," Evers said in the statement."Our fight against COVID-19 isn’t over — 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."

Meanwhile, the GOP leaders of the state Legislature lauded the opinion.

Assembly Speaker Robin Vos, R-Rochester, argued people should be allowed to make their own decisions when it comes to wearing a face covering.

"The Wisconsin Supreme Court confirmed what we already knew," Vos said in a prepared statement. "Governor Evers exceeded his authority by issuing multiple emergency orders without consulting the legislature. People and businesses are free to make decisions based on what’s best for them and don’t need state government telling them how to live their lives."

Senate Majority Leader Devin LeMahieu, R-Oostburg, said the ruling "upholds the separation of powers and the rule of law."

"The Governor’s repeated abuse of emergency powers and pervasive violation of state statute created a state of chaos and had to be stopped," LeMahieu said in a prepared statement. "The Legislature exercised its authority to revoke Governor Evers’ order in February, and today the Court handed down the final rebuke of the Governor’s illegal actions."

In addition to striking down the statewide mask mandate, the decision puts tens of millions of dollars a month in federal food aid to Wisconsin at risk. A state must have a pandemic emergency declaration in place to receive the funding. According to a memo from the Legislature’s nonpartisan budget office, about 242,000 households in Wisconsin received about $49 million in additional federal food aid in January.

Wednesday's ruling is not the first time the court has significantly reined in Evers' authority during the pandemic. Last May, the court's conservative majority struck down his administration's "Safer at Home" order, which put statewide limits on gatherings and businesses.

Wisconsin Public Radio, © Copyright 2021, Board of Regents of the University of Wisconsin System and Wisconsin Educational Communications Board.

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