On March 31, 2021, the Supreme Court of Wisconsin issued its ruling in Fabick v. Evers, finding that Governor Evers exceeding his authority in issuing multiple Executive Orders declaring states of emergency due to the COVID-19 Pandemic under Wis. Stat. § 323.10. In ruling that Governor Evers surpassed his statutory authority, the court terminated the existing state of emergency and, with it, the statewide mask mandate.

Background

Wis. Stat. § 323.10 allows a Governor to declare a state of emergency for a period of 60 days in the event of a public health emergency. Governor Evers first declared a state of emergency due to COVID-19 in March 2020 pursuant to an executive order. That order expired after 60 days, in May. No one has questioned that COVID-19 constitutes a public health emergency.

 

The controversy stems in the fact that Governor Evers issued subsequent orders declaring states of emergency in July, September, November, January, and February. The executive orders cited as their bases updated statistics on the effect of COVID-19 in Wisconsin, including the trending increase or decrease of cases, deaths, and hospitalizations.

 

Specific to the last two state of emergency declarations, Governor Evers and the Wisconsin Legislature engaged in a game of cat and mouse, if you will. The Legislature terminated the state of emergency declared in January on February 4, 2021, before it was set to expire. Then, Governor Evers signed a new emergency public health declaration the same day.

 

Each one of these executive orders had an accompanying emergency order mandating the use of face masks or coverings statewide.

IMPORTANT! Public Health Emergency à Mask Mandate

It is the declaration of a public health emergency that allows the governor to issue orders deemed necessary, pursuant to Section 323.12(4)(b) of the Wisconsin Statues, such as an order requiring individuals to wear face coverings.

 What Did the Court Decide?

The Court primarily looked at two issues: 1) whether the plain language of § 323.10 prevents a Governor from issuing multiple states of emergency based upon the same “enabling condition”; and 2) whether, under the facts, the Governor’s executive orders declaring states of emergency were based on the same “enabling condition”. The Court ruled against Governor Evers on both issues.

 

“Not to Exceed 60 Days”

First, the Court found that the plain language of § 323.10 prohibited Governor Evers from declaring multiple states of emergency based on the same underlying circumstances. The Court noted that the statute says that a state of emergency “shall not exceed 60 days” unless the legislature extends it and that the legislature may also terminate a state of emergency prior to sixty days, as happened on February 4, 2021. The Court determined that allowing a governor to simply declare a new emergency on the same basis would violate the intention of the statute, which is that a governor initially may declare a state of emergency, but that the legislature has the ultimate say in determining whether it continues.

 

Comparison with similar statute

The Court compared this statute to § 323.11, which provides local governments with the power to declare states of emergency as well. Under § 323.11, local governments can declare a state of emergency that is may continue for “the period of time during which the emergency conditions exist or are likely to exist.” Based on this comparison, the Court noted that the legislature could easily have given the Governor authorization to declare an emergency response “coextensive with the emergency conditions” had it desired to. However, the legislature did not do so in § 323.10. The Court further noted that, when adopting portions of a model emergency health powers act in 2002, which made § 323.10 what it is today, the legislature  did not adopt a model provision that would have given the Governor explicit permission to renew public health emergency declarations every 30 days.

 

Evers argues differing set of circumstances

Next, Governor Evers argued that, even if he is not allowed to declare multiple states of emergency based upon the same underlying facts, his declarations were based on new sets of on-the-ground facts: the statistics and impacts of COVID-19 at the time of each particular declaration. The Court found this argument unconvincing, believing it would read the duration limitations discussed above right out of the law. The Court concluded that a governor could easily draft a new emergency order stating the challenges or risks are a little different than they previously had been, essentially giving a governor indefinite emergency power. The Court did not develop a test or method for determining whether the basis for a new state of emergency is sufficiently new or attenuated from the basis for a previous declaration under § 323.10. Rather,  it concluded that here, the health conditions caused by COVID-19 “remained, unabated” and that Governor Evers relied on the same enabling condition for subsequent states of emergency after the first state of emergency expired in May, 2020.

 

Pursuit of federal funding not sufficiently different

Finally, the Court noted that the other ground for termination of a state of emergency under § 323.10, termination prior to 60 days by the legislature, also prohibits a governor from issuing a subsequent order based on the same grounds. As such, the Governor’s declaration issued on February 4, 2021 was overturned. The Court was not swayed by Governor Evers’ argument that the February 4 declaration was on the sufficiently new basis of a federal requirement for states to have a declaration of public health emergency to receive emergency funding, noting that the same requirement existed at the time of the previous declaration in January.

 

So, What Changes For Me?

It mostly depends on where you live. Today’s court ruling terminates the statewide mask mandate. It does not affect any local- or county-level mask requirements. So, for example, Dane County still has a mask mandate, with more info on that, here: Dane County Requires Face Masks Starting July 13.  It also does not prohibit a business from implementing any sort of mask policy or requiring employees or patrons to wear a mask while on private property.

 

How can KEW Help?

Stay tuned to KEW Tips for the latest developments. The attorneys at KEW keep close tabs on any changes to COVID policy both locally and statewide, and are able to provide timely advice on rapid changes, such as our very own Leslie Elkins (the “E” in KEW) appearing on TMJ4’s newscast within hours of the Supreme Court’s decision on this case being released.

 

As always, if you wish to discuss the obligations of your business under the latest order, or any state or local orders put in place during the COVID-19 pandemic, feel free to contact Kramer, Elkins & Watt, LLC at 608-709-7115 or email us at var un=’info’;var hn=’kewlaw.com’;document.write(‘‘+un+’@’+hn+”);.

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