Six months after they struck down Wisconsin's "Safer at Home" order, Wisconsin Supreme Court justices will hear another challenge to the emergency powers Gov. Tony Evers' administration is using to fight the COVID-19 pandemic.
Justices will hear arguments Monday morning in a case that challenges the emergency orders Evers used to issue Wisconsin's statewide mask mandate, which lasts until Nov. 21.
The lawsuit was filed by Jeré Fabick, a board member and policy advisor for The Heartland Institute, a free-market think tank, as well as the president of a multi-state Caterpillar equipment and engine dealer. Fabick is also a major GOP donor who gave $20,000 to conservative Justice Rebecca Bradley during her successful bid for the court in 2016.
Evers issued the mask mandate using a state law that gives governors the power to order 60-day public health emergencies in Wisconsin. It's different than the law his administration used earlier this year to issue its "Safer at Home" order.
Evers has used his powers to declare three public health emergencies this year. The first came March 12, at the beginning of the COVID-19 pandemic. The second, issued July 30, led to the first mask mandate and came as COVID-19 cases were beginning to climb. And the third, declared on Sept. 22, extended the mask mandate as COVID-19 cases were surging on University of Wisconsin campuses.
Fabick's challenge argues that state law prevents a governor from issuing multiple emergency orders for the same pandemic unless extensions are granted by the Legislature.
"There is no question that the pandemic has had a significant impact on the State of Wisconsin, or that COVID-19 has been an ongoing problem in Wisconsin since at least February 2020," argued Fabick's lawyers in a legal brief filed with the court. "But the existence of a crisis does not give the government unlimited authority to act in violation of the law."
If successful, the lawsuit would prohibit the governor from issuing similar emergencies in the future without the Legislature's consent.
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Evers, who is being represented by the Wisconsin Department of Justice, has argued that he issued multiple emergency declarations because the COVID-19 pandemic has changed.
"COVID-19 is not new to Wisconsin," wrote the Wisconsin DOJ in its brief to Supreme Court justices. "But the skyrocketing of COVID-19 spread at the start of the school year, accelerating our state towards hospital-bed capacity, preventable deaths, and the ominous title of a national COVID-19 hotspot—that is new to Wisconsin."
Last week, Assistant Department of Health Services Secretary Julie Willems Van Dijk said Wisconsin's seven-day average of new COVID-19 cases had surpassed New York's highest seven-day average in April. Wisconsin is currently averaging more than 6,000 cases per day.
Also last week, Nancy Knight of the U.S. Centers for Disease Control and Prevention said Wisconsin is third in the nation for the number of COVID-19 cases by population.
The state's mask mandate requires people 5 years old and older to wear masks in indoor or "enclosed" public places when people who don't live with them are present. There are exemptions for certain activities, like eating, drinking and swimming.
While justices agreed to hear Fabick's case, it's unclear how the Supreme Court might rule. When the court struck down "Safer at Home" in May, it had a 5-2 conservative majority, a margin that has since been trimmed to 4-3.
That puts the focus squarely on conservative Justice Brian Hagedorn, who joined the court's liberals in voting to uphold "Safer at Home."
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Wisconsin Supreme Court To Hear Arguments Monday In Challenge To Evers' Emergency Powers - Wisconsin Public Radio News
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