On Wednesday, March 31, the Wisconsin Supreme Court issued a ruling in Jeré Fabick v. Tony Evers, holding 4-3 that the governor cannot issue successive emergency declarations on the same subject. Petitioner Jeré Fabick sought a declaratory judgement on Governor Tony Evers’ authority to issue multiple public health emergency declarations related to the COVID-19 pandemic. Justice Brian Hagedorn delivered the majority opinion, joined by Chief Justice Pat Roggensack and Justices Annette Ziegler and Rebecca Bradley. Justice Ann Walsh Bradley wrote a dissenting opinion joined by Justices Rebecca Dallet and Jill Karofsky.
At issue in this case was the language of Wisconsin Statutes Chapter 323, which allows the governor to declare a state of public health emergency in Wisconsin or for any portion of the state. According to Wis. Stat. § 323.10, a public health emergency declared by the governor expires after 60 days unless it is extended by the Legislature.
In response to the COVID-19 pandemic, Gov. Evers declared a series of statewide public health emergencies in March, July, September, and November of 2020, and again in January 2021. None of these emergency declarations were extended beyond 60 days by the Legislature. Pursuant to each emergency declaration, Gov. Evers also issued statewide mandates requiring individuals to wear face coverings in most situations when they are indoors or around other people from another household.
Fabick filed suit in October 2020, asking the Wisconsin Supreme Court to find that the governor’s July and September emergency declarations were issued unlawfully. The court accepted Fabick’s petition for original action and oral arguments were held the following month on November 16. The court ultimately agreed with Fabick’s argument that § 323.10 prevents the governor from issuing multiple emergency orders on the same subject. Following the decision, the Wisconsin Legislative Council released a memo summarizing the decision and its effects.
Republican leaders in the Legislature were opposed to Gov. Evers’ issuance of multiple public health emergencies related to COVID-19. Two amicus curiae briefs were filed on behalf of the Legislature in Fabick v. Evers supporting Fabick’s position. Indeed, on February 4, the Assembly approved a joint resolution to end the governor’s emergency that was active at the time (it had been approved by the Senate one week earlier). However, immediately following the Assembly’s vote, Governor Tony Evers announced that he had issued a new public health emergency order and related mask mandate. These orders were still active when the Supreme Court issued its decision, invalidating the orders.
In an earlier case related to COVID-19, Legislature v. Palm (issued May 13, 2020), the Wisconsin Supreme Court declared the “Safer at Home” order issued by the Department of Health Services (DHS) to be unenforceable. In December 2020, the state’s highest court declined to hear as an original action a case challenging Dane County’s restrictions on private, indoor gatherings. That case was re-filed in Dane County Circuit Court in January.