State Court Docket Watch: Fabick v. Evers

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the authors. We do invite responses from our readers. To join the debate, please email us at [email protected].

 

I. Background – Governor’s Public Health Emergency Orders and Mask Mandate

On March 12, 2020, Wisconsin Governor Tony Evers issued Executive Order #72[1] which proclaimed a health emergency pursuant to the Wisconsin law[2] in response to the COVID-19 pandemic.  On May 11, 2020, the executive order expired 60 days later pursuant to the statute[3] providing the governor the authority to act during a state of emergency.

On July 30, 2020, Gov. Evers issued another executive order,[4] again proclaiming “that a public health emergency” existed in Wisconsin due to the COVID-19 pandemic. On September 22, 2020, Gov. Evers issued another executive order[5] extending the public health emergency an additional 60 days based on the COVID-19 pandemic.[6] On September 22, 2020, Gov. Evers also issued Emergency Order #1[7] which mandated face coverings for all indoor and enclosed spaces, with certain exceptions.

In November 2020, Jeré Fabick filed a petition for original action with the Wisconsin Supreme Court challenging the validity of the two executive orders that were issued by Gov. Evers after the initial public health emergency order. Mr. Fabick argued that Gov. Evers exceeded his statutory authority by extending the public health emergencies beyond the 60-day statutory limit without approval to extend the state of emergency by the Wisconsin Legislature as required by the statute.

After the court accepted the case, Gov. Evers issued another executive order[8] extending the public health emergency and mask mandate. On February 4, 2021, the Wisconsin Legislature affirmatively revoked Executive Order #104[9] by adopting a joint resolution,[10] thereby ending the mask mandate. Later that day, Gov. Evers issued Executive Order #105,[11] reinstating the public health emergency and again issuing an emergency order extending the mask mandate.  

II. Wisconsin Supreme Court Decision

The Wisconsin Supreme Court granted the petition and heard oral arguments on November 16, 2020. On March 31, 2021, the court issued a 4-3 decision[12] ruling in favor of Mr. Fabick striking down the governor’s multiple public health emergency orders and mask mandates.

A. Wisconsin Emergency Management Law

Under Wisconsin law, the governor has the authority to issue an executive order declaring a state of emergency. The statute provides in relevant part:

The governor may issue an executive order declaring a state of emergency for the state or any portion of the state if he or she determines that an emergency resulting from a disaster or the imminent threat of a disaster exists.  If the governor determines that a public health emergency exists, he or she may issue an executive order declaring a state of emergency related to public health for the state or any portion of the state and may designate the department of health services as the lead state agency to respond to that emergency…. A state of emergency shall not exceed 60 days, unless the state of emergency is extended by joint resolution of the legislature. A copy of the executive order shall be filed with the secretary of state. The executive order may be revoked at the discretion of either the governor by executive order or the legislature by joint resolution.[13] (Emphasis added)

B.  Wisconsin Supreme Court Holds that Gov. Evers Exceeded His Statutory Authority by Issuing Multiple Executive Orders for the Same Emergency

The issue before the court was whether Gov. Evers exceeded his statutory authority when he proclaimed states of emergency related to COVID-19 after the initial state of emergency, also related to COVID-19, had existed for 60 days and was not extended by the legislature.

Interpreting the plain language of the statute, the Wisconsin Supreme Court held that Gov. Evers exceeded his authority by issuing multiple executive orders extending the original public health emergency beyond the 60-day limit without the legislature’s approval.

According to the court, Gov. Evers relied on the same enabling condition, the COVID-19 pandemic, for the multiple executive orders that continued beyond the 60-day limit for the original emergency order.[14] The court explained that the statute 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. That occurred in March 2020 when Gov. Evers issued his first emergency order in response to the COVID-19 pandemic. The court further held that when relying on the same enabling condition, the governor is subject to the 60-day limit prescribed by the statute, unless the legislature extends the state of emergency by joint resolution. Here, not only did the Wisconsin Legislature not extend the state of emergency related to the COVID-19 pandemic, it adopted a joint resolution revoking the governor’s subsequent executive orders declaring a state of emergency. The court declared that all executive orders issued by Gov. Evers after the original executive order declaring a state of emergency in response to COVID-19 were unlawful.[15]

The decision was authored by Justice Brian Hagedorn, and joined by Chief Justice Patience Roggensack, Justice Annette Ziegler, and Rebecca Grassl Bradley.

C.  Dissent

The dissenting opinion shifts the focus of the 60-day limit in Wis. Stat. § 323.10 to the definition of “public health emergency” under Wis. Stat. § 323.02(16). That provision provides in relevant part:

“Public health emergency” means the occurrence or imminent threat of an illness or health condition that meets all of the following criteria:

(a) Is believed to be caused by bioterrorism or a novel or previously controlled or eradicated biological agent.

(b) Poses a high probability of any of the following:

1. A large number of deaths or serious or long−term disabilities among humans.

2. A high probability of widespread exposure to a biological, chemical, or radiological agent that creates a significant risk of substantial future harm to a large number of people.

The dissent focuses on the term “occurrence” in the statute and states that the two subsequent executive orders “were in response to ‘occurrences’ that have already taken place.”[16] Specifically, the dissent argues that the “new spike in [COVID-19] infections drove Order #83 and Order #90 was issued because of the significant increase in the spread of the virus occasioned by the beginning of the school year.”[17] According to the dissent, an occurrence is a “something that takes place” or “something that happens unexpectedly and without design.”[18] Applying the definition of “occurrence” to the executive orders, the dissent states that the orders were issued “in response to separate occurrences and are permissible under the plain language” of statutory definition of public health emergency.[19]