Wisconsin Governor’s Emergency Powers Scrutinized by State High Court

Representing Fabick was Andrew Fernholz, an attorney with the Waukesha-based firm Cramer, Multhauf & Hammes who also serves as president of the Milwaukee Lawyers Chapter of the Federalist Society. He called Evers’ second and third emergency orders “an unlawful end-run around the legislature’s 60-day limit on the exercise of emergency powers.”

Fernholz put forth that Evers could have come to the legislature to request an extension to his original emergency declaration, but instead eschewed that approach in favor of relying on broad executive powers in a way that violates Wisconsin law.

Justice Ann Walsh Bradley, a member of the court’s liberal wing, posed a hypothetical to Fernholz about Covid-19 resurfacing in two years, and asked him whether the governor would be able to declare a public health emergency over it at that time since he already did this year.  

Fernholz responded that, according to the statute’s language, he would be able to do so if the virus was eradicated or controlled, neither of which is true at this point. Fabick argued that the Covid-19 pandemic is a single occurrence, so Evers cannot indefinitely declare more and more emergency orders over it without legislative say-so.

Justice Rebecca Dallet, who along with Justice Jill Karofsky rounds out the court’s liberal bloc, told Fernholz, “I don’t follow how the governor has any authority to do anything under your logic.”

Karofsky and Fernholz argued about whether the fact that the state of the virus in Wisconsin is significantly worse than it has ever been means the underlying condition justifying the original order from March is the same, with the justice saying it is not and Fernholz arguing that it technically is under the letter of the law.

To support his stance that the virus is not a new occurrence, Fernholz pointed to a recent Seventh Circuit decision halting an expansion to absentee voting due to the coronavirus. The Chicago-based federal appeals court found that Covid-19 was no longer a fresh emergency justifying last-minute changes to election law.

Karofsky retorted by asking Fernholz, given the virus’ exponential recent spread, when it stopped being novel between January and today.

“If this isn’t novel, I don’t know what is,” the justice said.

When Dallet asked Fernholz why the legislature has done nothing to fight the virus, Fernholz responded that “it is not for the legislature to convene in special session and say ‘we do not approve of the governor violating the law,’” but it is incumbent on Evers to follow the law in the first place.

Assistant Attorney General Hannah Jurss appeared on behalf of the governor, first making the case that Fabick did not have taxpayer standing to challenge Evers’ executive powers and that the court has a limited role in deciding the propriety of the governor to “push the alarm button” using emergency orders.

Jurss argued that using emergency authority to mitigate the virus is not the “one-and-done work” that Fabick suggests and that “there’s a difference between the cause underlying emergency circumstances and the emergency circumstances themselves” when responding to an ever-changing public health crisis like the coronavirus.

Conservative Justice Rebecca Grassl Bradley opined that under Jurss’ interpretation of the law there may be no one that can check the governor, taxpayer or legislature alike.

Justice Brian Hagedorn, another of the high court’s conservatives, agreed that state of emergency powers are “broad, extraordinary powers that the legislature only wanted to allow for a very short period of time.”

Jurss countered that terms like “emergency” and “occurrence” reflect an event that may be one in a series of events.

The state’s attorney presented the analogy of an active war that had Wisconsin under direct threat of attack from the enemy in March and still has them under threat of attack in September, arguing that everyone would probably agree that the governor should be able to use emergency orders in the way he has with Covid-19 under circumstances of war.

Nevertheless, Hagedorn in the end reasserted that the governor can only do what he has been specifically given the power to do, regardless of his sincerity in trying to do the right thing at the right time.

During Fernholz’s rebuttal, Karofsky pointed out that Fabick was a Wisconsin taxpayer in the autumn and winter of 2013-2014 when Republican Governor Scott Walker declared six states of emergency related to extremely cold weather in the state and asked if the petitioners would make the same argument then that they are making against Evers now, something for which Fernholz declined to take a position.

Fernholz concluded his rebuttal by staking the claim that “rapid growth of the virus does not change it into a new public health emergency.”

The high court did not say when it would make its decision at the close of Monday’s arguments.

Also appearing briefly at arguments Monday was Rick Esenberg, founder and general counsel for the Wisconsin Institute for Law & Liberty, a conservative advocacy group and prominent Evers critic that sued the governor over the state’s mask mandate. That case was stayed pending resolution of Fabick’s lawsuit, and the mask mandate remains in effect.

Follow @cnsjkelly

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