While everyone was distracted with waiting for the results of Tuesday’s elections, there were new developments in the lawsuits concerning Governor Tony Evers’ Emergency Covid-19 orders.
The Wisconsin Institute for Law & Liberty (WILL) filed an amicus brief with the Wisconsin Supreme Court on Tuesday in the case of Fabick v. Evers. The lawsuit by Waukesha County businessman Jeré Fabick is being considered directly by the Supreme Court and concerns Evers’ order authorizing a statewide mask mandate.
According to the brief by WILL, the only way for Evers to extend his emergency powers is with the consent of the legislature.
“Under the statute there is one, and only one, way for the state of emergency to exceed 60 days—and that is by joint resolution of the Legislature,” WILL says in the brief to the Supreme Court. “No such resolution has been passed.”
The brief warns that if the state Supreme Court sides with Evers that there is no limit on the number of times he can declare an emergency for the same public health emergency, the Covid-19 virus, “then the statutory framework violates the state constitution.”
“This is so because Wisconsin’s Constitution clearly vests the legislative power in the Senate and Assembly alone, Wis. Const. Art. IV, § 1, and the Legislature may not simply give that power away,” the brief by WILL says. “The constitutional separation of powers is not for the benefit of those who hold those powers; it is the bedrock of liberty.”
In a statement following the filing of the brief, WILL President and General Counsel Rick Esenberg said Covid-19 does not mean there are no limits to Evers’ authority.
“Governor Evers’s response to COVID-19 violates the law and challenges the separation of powers in fundamental ways,” Esenberg said. “There can be no pandemic exception to the rule of law.”
In an op-ed for the Wisconsin State Journal, Esenberg explained that WILL’s lawsuit was not about the statewide mask mandate, but Evers’ unchecked use of emergency declarations.
“But our lawsuit is not about whether the state of Wisconsin, as a whole, should take additional measures to address COVID-19. This lawsuit is not even about whether there can ever be a statewide mask mandate or whether masks are good or effective,” wrote Esenberg. “This lawsuit is about ensuring that a challenge like COVID-19 doesn’t erode our system of government and subvert the rule of law.”
In addition to the amicus brief, WILL also petitioned the state Supreme Court to allow time at oral arguments for the conservative legal organization to present its argument that the legislature could not delegate its authority to the executive branch without limit.
WILL had previously filed suit in Polk County against Evers’ attempt to issue a second emergency order to combat the Covid-19 virus. However, Judge Michael Waterman, a St. Croix county judge brought in for the case, refused to grant an emergency injunction in the case. WILL then asked the judge for a final ruling in the case before considering an appeal.
Fabick then filed a lawsuit against the order and was able to get the state Supreme Court to take the case directly. WILL’s case in Polk County was placed on hold and the Supreme Court invited WILL to file an amicus brief in Fabick v. Evers.
On Wednesday, the Republican-controlled Wisconsin Legislature asked the state Supreme Court to also be allowed to file a brief in the case. Republicans have so far refused to pass a joint resolution to stop Evers’ emergency orders, and in their request to the Supreme Court they claim that a joint resolution would not be enough to stop Evers:
“Here, the Legislature seeks leave to file a non-party brief in support of Petitioner’s claims to raise three important arguments: (1) the Legislature deliberately declined to add a provision permitting the Governor to renew emergency declarations unilaterally and indefinitely, (2) adopting Petitioner’s and the Legislature’s plain-language reading of the emergency powers statute would avoid putting its constitutionality into doubt, and (3) the Governor’s abuse of the emergency statute cannot be remedied by a joint resolution of the Legislature.”
Evers’ other Covid-19 Emergency Order continues to be held up at the Appeals Court level. The Wisconsin Supreme Court decided Wednesday not to take directly the lawsuit against the Evers Administration’s order to limit indoor capacity to 25% in bars and restaurants and limit the size of other gatherings .
The lawsuit was originally brought by the Wisconsin Tavern League. However, after a defeat at the circuit court level, the case was taken up by Pro-Life Wisconsin and a tavern in Amery, WI. The 3rd District Appeals Court issued a temporary injunction, stopping the order from going into effect.
The Evers Administration and Wisconsin Attorney General Josh Kaul (D) hoped to get the state’s high court to take the case directly as well to resolve the issue.
In her dissent, Justice Rebecca Dallet wrote that the issue is of “great public importance” and the administration needed guidance in how to interpret the previous Supreme Court decision, Wisconsin Legislature v. Palm, striking down Evers’ first attempt to extend his emergency order authority.
“State officials need legal clarity to chart a course forward. There is no reason why this court should wait for the court of appeals to interpret our decision in Palm,” Dallet wrote. “Who better to offer that needed clarity than this court? Given the exigency of the current public health crisis, any further delay is ill-advised.”
The Wisconsin Hospital Association reports there were 5,922 cases of Covid-19 in Wisconsin on Thursday, bringing the total year-to-date cases to 249,924. There were 1,774 cases in Wisconsin’s hospitals with 376 of them in the state’s Intensive Care Units. There were 39 more reported deaths from Covid-19 on Thursday, bringing the total number of dead to 2,194 in Wisconsin.