Wisconsin Supreme Court Considers Mask Mandate Challenge

Nov 16, 2020

Updated 3:01 p.m. CST

The Wisconsin Supreme Court heard arguments Monday in a case that could affect Gov. Tony Evers’ emergency powers amid the COVID-19 pandemic.

The case challenges Evers’ authority to issue multiple emergency orders during a single crisis. Evers has issued three emergency orders during the pandemic. The most recent one took effect in September, and it extended a statewide mask mandate. The order is currently set to expire on Saturday, although Evers could extend it.

The first emergency order Evers issued in March was legal for 60 days, but after that only the Legislature can extend it, argued attorney Matthew Fernholz who is seeking to have the mask order invalidated.

"Gov. Evers has conferred on himself the right to declare successive states of emergency for the same public health emergency," Fernholz said. "The orders represent an unlawful end run around the Legislature’s 60-day limit on the exercise of emergency powers."

Evers argues that he can issue multiple health emergencies, even though state law limits them to 60 days, because of the changing threat caused by the pandemic. 

The Supreme Court held virtual arguments on Monday and took the case under advisement. It likely won't issue a ruling for several weeks.

The Wisconsin Supreme Court in May struck down Evers' safer-at-home order, ruling that his administration overstepped its authority when it extended the order without consulting lawmakers.

The court was controlled 5-2 by conservatives when it issued that order. But that margin is now 4-3, and one of the conservatives, Justice Brian Hagedorn, sided with liberals in May in wanting to uphold the safer-at-home order.

Hagedorn on Monday questioned Evers' authority to renew health emergencies beyond the 60-day limit. He said this was an “extraordinary grant of short-term power to the governor" and that “it seems like the Legislature wanted to allow for only a very short period of time.”

“Nobody’s questioning the governor’s sincerity in trying to do what he thinks is right here,” Hagedorn said. “But he can only do what the power he’s been given to do.”

Hannah Jurss, an assistant attorney general defending Evers, countered that the governor doesn’t have “one and done” authority over a health emergency, and as conditions warrant, he may need to issue subsequent orders.

"If, let’s say, a foreign enemy declared war on the United States, and Wisconsin was under the threat of attack from that enemy in March and September, I think we would all agree that emergency conditions exist in March and emergency conditions exist in September, even though those conditions are caused by the same enemy and even though the war may not have ended in the middle," Jurss said. "And the same is true here."

Justice Rebecca Bradley, part of the court’s conservative majority, was skeptical. "I don’t understand how the 60-day limit in the [law] would ever come into play if we accept the governor’s interpretation,” she said.

The arguments come as Wisconsin broke records last week for new COVID-19 cases amid a coronavirus surge in the state that began in September and has forced many hospitals to operate at or near capacity.

Wisconsin has logged more than 312,000 COVID-19 cases and 2,637 deaths since the pandemic began. There were 2,096 people hospitalized as of Sunday, just below a record high set on Wednesday, according to the Wisconsin Hospital Association. There were 1,522 new cases per 100,000 people in Wisconsin over the past two weeks, which ranks fourth in the country for new cases per capita, according to Johns Hopkins.

A state appeals court in October put on hold another Evers order limiting how many people could gather indoors at such places as bars and restaurants. The Supreme Court earlier this month declined to hear the case, meaning there are no statewide capacity limits but there are local restrictions in many places.

The case heard Monday was brought by Jere Fabick, a major Republican donor in Wisconsin who has given more than $350,000 to Republican or conservative candidates in Wisconsin between 1994 and the middle of 2020, according to the Wisconsin Democracy Campaign. In 2016, Fabick gave $20,000 to conservative Wisconsin Supreme Court Justice Rebecca Bradley. Fabick is a board member and policy advisor for The Heartland Institute, a free-market think tank and also the president of a multi-state Caterpillar equipment and engine dealer.

A lower court judge sided with Evers in a second case challenging the mask mandate that was brought by the conservative Wisconsin Institute for Law and Liberty and Republican legislative leaders. A St. Croix County judge in October said there was nothing to prevent the governor from issuing multiple public health emergencies. The judge also noted that the Legislature has the power to overturn the order if it wanted to, but so far has not done that.

Rick Esenberg, president of the Wisconsin Institute for Law and Liberty, was allowed to argue before the court Monday in support of striking down the Evers order.