MADISON, Wis. — The Wisconsin Supreme Court has ruled that Gov. Evers overstepped his emergency powers in issuing multiple emergency orders for the same pandemic. The 4-3 ruling, with the majority opinion written by Justice Brian Hagedorn, comes months after the court first heard oral arguments.
Gov. Evers issued his first emergency order in March to help mitigate the spread of COVID-19 in Wisconsin and has issued several orders since, forming the basis for additional orders like the current mask mandate. State law allows a single state of emergency to continue for 60 days unless the legislature prolongs it; the main argument of the case is that because the pandemic has not changed, therefore multiple emergency orders related to the same emergency are invalid.
The Governor’s legal counsel had argued before the high court that the issue of whether he can declare an emergency order is the jurisdiction of the executive and legislative branches of government, not the judicial branch. Additionally, Gov. Evers argued that Wisconsin law allows him to issue separate emergency orders based on different and evolving emergencies stemming from the same underlying cause–in this case, the COVID-19 pandemic.
The court granted original jurisdiction to the case in October, meaning the lawsuit bypassed lower courts and began in the state’s highest court. Justices heard oral arguments for the case in mid-November; at the time, conservative-backed justice Brian Hagedorn–who has proved a swing vote in several recent cases, siding with liberal-backed judges in election lawsuits–seemed skeptical of the Governor’s interpretation of emergency authority. The court is narrowly controlled on a 4-3 margin by conservative justices.
The ruling does not impact orders issued by local public health officials, like those requiring masks and business capacity limits in counties like Dane.
Earlier this year, the Republican-controlled legislature voted to strike down the mask mandate and underlying emergency order; Evers promptly issued a new one.
Fabick v. Evers is brought by Jere Fabick, a businessman and Wisconsin Republican political donor who is also pursuing a case in the supreme court against the Wisconsin Elections Commission and other election officials in the wake of President Joe Biden’s victory in the state. He also brought a lawsuit to the supreme court in May against Andrea Palm and the Department of Health Services against the Safer at Home order, which was dismissed after the court ruled to overturn it in a separate case.