Wisconsin Supreme Court rules governor cannot declare multiple emergency orders for same issue
Decision ends statewide mask mandate; local orders can remain in place
By Jalen Maki
Tomahawk Leader Editor
WISCONSIN – More than four months after it heard arguments in the case, the Wisconsin Supreme Court on Wednesday, March 31 ruled 4 to 3 that the governor cannot declare multiple emergency orders for the same issue without first getting Legislative approval.
The ruling immediately ended Governor Tony Evers’ statewide mask mandate. Orders enacted by local governments can remain in place.
The court’s conservative justices were in the majority, while the liberal justices on the bench dissented.
Evers has declared multiple emergency orders since the COVID-19 pandemic began last spring. According to state law, the governor can issue an emergency order, lasting 60 days, after which they must get the go-ahead from the State Legislature for an extension. The State Legislature did not extend any declared emergency order, leading to Evers’ declarations of new orders following the expirations of preceding orders.
Evers has also on numerous occasions extended the statewide mask mandate, which was put in place last summer.
The Republican-controlled State Legislature on Feb. 4 passed a joint resolution striking down the state’s emergency order and statewide mask mandate. About an hour later, Evers issued a new public health emergency and statewide mask order.
Justice Brian Hagedorn delivered the majority opinion in the ruling.
“The question in this case is not whether the Governor acted wisely; it is whether he acted lawfully,” he wrote. “We conclude he did not.”
Writing in concurrence, Justice Rebecca Bradley pointed to “separation of governmental powers in our state constitution.”
“We sustain this separation of powers without exception, even in a pandemic,” she wrote. “Accordingly, this court does not consider the prudence of particular measures to address the pandemic; such policy decisions rest with the legislature, not the judiciary. This case is about who has the power to make those decisions. The Wisconsin Constitution answers that question—it is the legislature’s duty to make the laws that govern our lives, the governor’s duty to execute them, and the judiciary’s duty to ensure they comport with the constitution.”
State Senator Mary Felzkowski (R-Tomahawk) also touched on the separation of powers in a statement released after the ruling.
“Our forefathers had the vision to create a system that maintains a separation of powers between the three branches of government – today’s ruling was a prime example of how our government is supposed to work,” she said. “The Legislature and the Governor disagreed on how the law should be interpreted and the courts stepped in with their clarification. This is a big win for constitutionalists and a landmark decision that will protect the separation of powers in Wisconsin for years to come.”
Justice Ann Walsh Bradley, writing in dissent, called the COVID-19 pandemic “no run-of-the-mill case.”
“We are in the midst of a worldwide pandemic that so far has claimed the lives of over a half million people in this country,” she wrote. “And with the stakes so high, the majority not only arrives at erroneous conclusions, but it also obscures the consequence of its decision. Unfortunately, the ultimate consequence of the majority’s decision is that it places yet another roadblock to an effective governmental response to COVID-19, further jeopardizing the health and lives of the people of Wisconsin.”
Evers issued a statement shortly after the ruling, saying that he has “worked to keep Wisconsinites healthy and safe” and “trusted the science and public health experts to guide our decision making” since the pandemic began.
“Our fight against COVID-19 isn’t over—while we work to get folks vaccinated as quickly as we can, we know wearing a mask saves lives, and we still need Wisconsinites to mask up so we can beat this virus and bounce back from this pandemic,” he stated.