Wisconsin Supreme Court rules Gov. Evers overstepped emergency powers during pandemic

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.

The ruling voids the current mask mandate that is set to expire on Monday, finding that multiple emergency orders based on the same pandemic are unlawful.

“The question in this case is not whether the Governor acted wisely; it is whether he acted lawfully. We conclude he did not,” Justice Brian Hagedorn wrote in the majority opinion.

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.

In a statement Wednesday morning, Gov. Evers says he’s worked to keep Wisconsinites health and safe while trusting public health experts to guide decision making.

“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,” Evers said. Republican legislative leaders applaud the decision as upholding constitutional powers, while Democrats say they’re disappointed in the decision.

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.

“This is no run-of-the-mill case. We are in the midst of a worldwide pandemic that so far has claimed the lives of over a half million people in this country. And with the stakes so high, the majority not only arrives at erroneous conclusions, but it also obscures the consequence of its decision,” Justice Ann Bradley wrote in a dissenting opinion.

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.

This coverage will be updated.