Wisconsin Governor’s Emergency Powers Scrutinized by State High Court

Voters wearing masks to protect against Covid-19 wait in line outside a polling place in Kenosha, Wis., on Election Day, Nov. 3, 2020. (AP Photo/Wong Maye-E, File)

MADISON, Wis. (CN) — The Wisconsin Supreme Court heard arguments Monday over whether the governor can declare emergency orders longer than 60 days without legislative approval, the latest chapter of a largely partisan fight between Badger State leaders over the battle against the pandemic.

Monday’s 90-minute hearing stemmed from a petition for original action brought by Jeré Fabick, the president of Fabick Cat, the Caterpillar equipment and engine dealer for Wisconsin, the upper peninsula of Michigan and portions of Missouri and Illinois. Fabick is also an energy policy adviser at the Heartland Institute, a conservative think tank.

Fabick’s petition asks the high court to declare that Democratic Governor Tony Evers, or any governor, cannot declare more than a single 60-day public health emergency for a single public health crisis, in this case the novel coronavirus which has had the state in various forms of lockdown since March when Evers entered his first emergency declaration. Fabick wants the justice to enjoin the Evers administration’s subsequent July and September emergency orders that were part of the state’s continued response to Covid-19.

The relevant Wisconsin statute dealing with governor-declared emergency orders affords the chief executive broad powers to limit movement and affect the function of businesses and private property, among other measures. Evers used his most recent emergency orders to limit public gatherings and mandate face coverings in public spaces, both of which state conservatives, local businesses and commerce lobbies have fought to undo in court in lockstep with the GOP-controlled Wisconsin Legislature.

Wisconsin law dictates that the governor can only extend a 60-day state of emergency with legislative approval, which necessitates a level of cooperation between the Badger State’s Democratic executive and Republican legislative branches that is exceedingly rare.

The state legislature has met in official quorum once since April when it first coordinated on a Covid-19 response. The one meeting it did have was to convene a special session Evers called for on police reform in light of the officer-involved shooting of Jacob Blake in late August which was gaveled in and out of both chambers in less than a minute.

Assembly Speaker Robin Vos, R- Rochester, publicly acknowledged the severity of Wisconsin’s virus spread late last month and although he expressed openness to a second Covid-19 relief package at that time, no concrete collaborative action by the legislature and the governor has materialized since.

Coronavirus activity has skyrocketed in Wisconsin as of late, making it one of the nation’s most severe hotspots. Since Fabick filed his petition on Oct. 15, the state has seen more than 150,000 new cases, bringing it to 312,369 total cases and just under 70,000 active cases as of Sunday, according to the state Department of Health Services, or DHS.

Deaths from the novel virus have nearly doubled since the beginning of October to a total of 2,636 after it took six months from March to September to reach 1,300. DHS figures last updated on Sunday say more than 2,000 people are currently hospitalized with the virus, and 86% of the state’s hospital beds are unavailable. Eighteen patients are currently at the 530-bed field hospital Evers activated south of Milwaukee in October.

The Wisconsin Supreme Court tossed Evers’ first coronavirus lockdown order back in May when the legislature sued after his administration tried to extend the order to control the virus’ spread in its earliest weeks without getting legislative permission.

Monday’s arguments before the 4-3 conservative-majority high court involved some hair-splitting over the definitions of terms like “occurrence” and “novel,” but the heart of the case examines how limited the governor is to declare unilateral states of emergency without consulting the legislature through statutory rulemaking procedures.

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.

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