Wisconsin Supreme Court strikes down mask executive orders as “unlawful”

Published: Mar. 31, 2021 at 5:35 AM CDT
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MADISON, Wis. (WBAY) - The Wisconsin Supreme Court has ruled Gov. Tony Evers exceeded his authority when issuing successive public health emergencies that included mask mandates.

The decision that came down Wednesday morning declares two of the governor’s executive orders to be “unlawful” under Wisconsin state statute.

It was a four-to-three decision. Justice Brian Hagedorn delivered the majority opinion on behalf of the conservative majority on the court.

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

State law says a state of emergency “shall not exceed 60 days, unless the state of emergency is extended by joint resolution of the legislature.”

The decision reads, “Wisconsin Stat. § 323.10 specifies that no state of emergency may last longer than 60 days unless it ‘is extended by joint resolution of the legislature,’ and that the legislature may cut short a state of emergency by joint resolution. The statute contemplates that the power to end and to refuse to extend a state of emergency resides with the legislature even when the underlying occurrence creating the emergency remains a threat. Pursuant to this straightforward statutory language, the governor may not deploy his emergency powers by issuing new states of emergency for the same statutory occurrence.”

CLICK HERE to read the full decision.

The conclusion states: “Read according to its plain language, in context, along with surrounding statutes, and consistent with its purpose, the best reading of Wis. Stat. § 323.10 is that it provides the governor the authority to declare a state of emergency related to public health when the conditions for a public health emergency are satisfied. But when later relying on the same enabling condition, the governor is subject to the time limits explicitly prescribed by statute.”

Shortly after the decision was issued, Gov. Tony Evers tweeted, “Wear a mask. Help 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. 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 says.

Wisconsin Republican Sen. Majority Leader Devin LeMahieu applauded the decision, saying it upholds the separation of powers.

Republican Assembly Majority Leader Jim Steineke (Kaukauna) writes, “Today’s ruling only validates what we’ve known all along – Governor Evers has been using his office to break the law for months. This decision is welcome, but long overdue. As we continue work to safely reopen our state, I’d encourage the governor to rethink his go-it-alone approach to leading.”

Democratic Minority Leader Gordon Hintz (Oshkosh) said the Supreme Court got it “100% backwards.”

“This ruling ensures that Wisconsin’s response to future pandemics will be more complicated and take more time, which in turn will cost more lives. Politics should have no place in responding to a public health emergency,” Rep. Hintz says.

The order does not impact business mask requirements, local ordinances or those that would fall under federal government.

A lawsuit filed in October challenged the governor’s authority to issue successive emergency orders.

Last March, Gov. Evers issued his first executive order declaring a public health emergency and putting into place a mask mandate during the COVID-19 pandemic. That order expired in 60 days, as required by state law.

In July, the governor issued another 60-day executive order for a public health emergency and order to wear face coverings in public places.

In September, Evers issued another 60-day public health emergency.

Businessman Jere Fabick filed a lawsuit claiming a governor can only issue one state of emergency regarding a “particular illness or pandemic.”

Attorneys for the state argued the legislature has power to revoke the emergency order and it shouldn’t have been a matter for the court. “Emergency response is not a core legislative power that the Legislature can delegate only in certain ways; it has long been recognized a shared executive and legislative power, with the executive having a critical role in recognizing the emergency circumstances and making time-sensitive determinations. And it cannot be that the Legislature has improperly delegated too much authority when it retains full authority to revoke a state of emergency order at will.”

The Supreme Court decision reads, “In this case, we conclude that Governor Evers relied on the same enabling condition for the states of emergency announced in Executive Orders #72, #82, and #90. The states of emergency proclaimed in Executive Orders #82 and #90 therefore reached beyond the power given to the governor under Wis. Stat. § 323.10, impermissibly extending the use of emergency powers in violation of the time limitations explicit in the statute. It matters not that the legislature did not take action to revoke these emergency declarations initially challenged by Fabick. Whether the legislature exercises its authority to terminate an unlawfully declared state of emergency has no bearing on whether it was lawful.”

Justice Hagedorn was joined by the conservative majority in Chief Justice Pat Roggensack, Justice Annette Ziegler and Justice Rebecca Bradley.

Justice Ann Walsh Bradley wrote the dissent. She was joined by Justice Rebecca Dallet and Justice Jill Karofsky.

“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. Unfortunately, the ultimate consequence of the majority’s decision is that it places yet another roadblock to an effective governmental response to COVID-19, further jeopardizing the health and lives of the people of Wisconsin,” writes Justice Ann Walsh Bradley.

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