MADISON, Wisconsin — The pendulum of statewide political power swung back toward the fulcrum on Wednesday when the Wisconsin Supreme Court ruled 4-3 that Gov. Tony Evers’ repeated use of emergency declarations to control the COVID-19 pandemic was illegal, thus ending the statewide face-mask mandate.
The ruling in Jeré Fabick vs. Tony Evers was the latest salvo in a running battle between the Democrat governor, whose COVID-19 mitigation strategy relies heavily on executive mandates, and Republican lawmakers, who have not only refused to approve Evers’ emergencies, but voted in early February to end the latest one. Hours later, Evers issued yet another emergency order for the same emergency. That violated state law, the court ruled. The case plaintiff is a frequent Republican donor and owner of a large construction-equipment business.
“The question in this case is not whether the governor acted wisely; it is whether he acted lawfully,” wrote Wisconsin Supreme Court Justice Brian Hagedorn, a frequent swing vote, opining for the court’s conservative majority. “We conclude he did not.”
Evers has issued six emergency declarations on COVID-19 since the Wuhan coronavirus first made a major impact in Wisconsin in March 2020. According to Wednesday’s Wisconsin Supreme Court ruling and a similar ruling May 13, only the first emergency declaration was valid. Evers’ Feb. 4, 2021 declaration, along with four previous emergency declarations, were illegal, according to Wednesday’s ruling.
“Executive Order #105 was declared the same day the legislature revoked the then-existing state of emergency by joint resolution,” the ruling read. “…we conclude that the state of emergency proclaimed in Executive Order #105 exceeded the Governor’s powers and is therefore unlawful.” The governor’s emergency declaration is limited under state law to 60 days, unless an extension is approved by the Wisconsin Legislature. That has not happened.
Rick Esenberg, president and general counsel for the Wisconsin Institute for Law & Liberty, said, “Governor Evers abused the law and the constitutional separation of powers by declaring multiple, consecutive emergencies. This decision ensures that Wisconsin’s constitutional order cannot be suspended for unlimited periods of time as long as the executive branch can justify an emergency declaration.” Esenberg participated in the November 2020 oral arguments in the case.
Pro-Life Wisconsin Inc., a plaintiff in another lawsuit against Wisconsin over COVID-19 regulations, applauded Wednesday’s ruling. “We are thankful for the people of Wisconsin, who are the real winners in this epic case that defied a tyrannical government and its puppets, namely Governor Tony Evers,” said Dan Miller, state director for Pro-Life Wisconsin Inc. “Wisconsin has always been a leader in science, but today we led on the rule of law. We are grateful that our State Supreme Court took the time to really look at the facts of the case and stand up to the executive branch and show them how checks and balances of power really work.”
Legislative reaction to the court ruling fell along political party lines.
“Governor Evers has been trying to rule this state like a king since March 2020,” said Sen. Steve Nass, R-Whitewater. “Governor Evers has shown repeated hostility towards the civil liberties of the people of this state. He and his advisers have attempted to shred constitutional limitations on government powers by moving to control every aspect of our daily lives by fiat for the last year.”
Despite the court ruling, Nass said he fears it won’t be the last word from the governor. “I have no doubt that Evers and his minions are not done yet. They will now focus their energies on organizing further infringements on civil liberties through excessive actions by liberal-leaning local governments and public health officials.”
Rep. Gordon Hintz, the Democrat Assembly minority leader from Oshkosh, said the ruling could cost lives. “I am deeply disappointed in today’s decision by conservatives on the Wisconsin Supreme Court. They got it 100 percent backwards today,” Hintz said in a statement. “The majority’s decision pretends that a pandemic is unchanging and ignores the devastating human impact of COVID-19. And it ensures that Wisconsin’s response to future pandemics will be more complicated and take more time, which in turn will cost more lives.”
The ruling could be a harbinger of forthcoming court action in two faith-related cases spurred by government actions to control COVID-19.
In one case, Madison-based St. Ambrose Academy sued the Dane County public health agency for its emergency order in late August 2020 to ban in-person classroom instruction in grades 3-12 due to COVID-19. The last-minute action by Public Health Madison & Dane County upended school-opening plans at St. Ambrose and numerous other Catholic elementary, middle and high schools. The Wisconsin Supreme Court issued a temporary injunction that allowed schools to open in September. Oral arguments in the case were heard Dec. 8 and a decision could come at any time.
Another case involves Pro-Life Wisconsin Inc., which intervened as a plaintiff in a suit against the Wisconsin Department of Health Services over statewide emergency rules that strictly limited the size of indoor gatherings, and declared certain businesses and organizations to be essential and allowed to operate without occupancy restrictions. Pro-Life Wisconsin was joined as a plaintiff in the suit by the Pro-Life Wisconsin Education Task Force Inc., Pro-Life Wisconsin state director Dan Miller, and Miki Jo’s Mixup, a restaurant and bar in Amery, Wis.
Both the St. Ambrose and Pro-Life Wisconsin cases are being handled by the Thomas More Society, a religious liberty law firm based in Chicago.
It is unlikely Wednesday’s Wisconsin Supreme Court action will do anything to ameliorate the strained relationship between the Republican-controlled Wisconsin Legislature and Democrat Evers. The Legislature is close to finalizing a trio of bills that would bar state or local health officials from closing churches or barring religious gatherings in an effort to stem COVID-19, and prohibit employers and state government from requiring that individuals receive a COVID-19 vaccine. Evers already vetoed similar provisions in another COVID-19 bill in February.
Evers’ reaction to the rebuke from the Wisconsin Supreme Court was to advise state residents to “mask up,” whether or not such advice is enforceable.
“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,” the governor said. “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.”
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