The Wisconsin Supreme Court on Wednesday dealt a blow to Democratic governor Tony Evers when it struck down his statewide mask mandate.
Under state law, the governor can declare a state of emergency for 60 days, after which it can only be extended by a joint resolution by the state legislature. The legislature can also, by joint resolution, cut short a state of emergency. Evers declared a state of emergency with regard to the COVID-19 pandemic in March 2020 and issued additional executive orders declaring a state of emergency in July, September, and this past February on the same day that the legislature revoked the previous state of emergency.
The question for the court was whether Evers exceeded his authority by proclaiming additional states of emergency because of COVID-19 after the initial state of emergency for COVID-19 had lasted for 60 days and not been extended by the legislature. In a 4-3 decision, the court determined that Evers does not have that authority. Justice Brian Hagedorn, writing for the majority, noted that, “The question in this case is not whether the Governor acted wisely; it is whether he acted lawfully. We conclude he did not.” The governor may declare one state of emergency based on a single enabling condition, but he cannot issue further states of emergency based on the same enabling condition, the court concluded.
In a dissent, Justice Ann Walsh Bradley wrote for the minority that “This is no run-of-the-mill case,” and that the majority got it wrong by ignoring the key term “occurrence” in the statute in question. In her view, new occurrences can arise due to the same underlying enabling condition. She also disagreed with the majority’s decision on standing that allowed a taxpayer to bring the lawsuit against the governor in the first place, saying that the majority “overrules over a century of precedent related to taxpayer standing.” She concluded that the decision “hampers the ability of governors to safeguard the health and lives of the people of Wisconsin.”