New Lawsuit Asks State Supreme Court to Toss Mask Order

The governor must respond next week.

A Waukesha County resident on Friday filed a new lawsuit against Gov. Tony Evers’ statewide mask order directly with the conservative-controlled Wisconsin Supreme Court, leapfrogging lower courts.

The suit, which is not the same one that resulted in a judge declining to block the order this week, is being brought forward by Waukesha County resident Jeré Fabick and Waukesha-based attorney Matthew Fernholz, president of the Milwaukee Lawyers Chapter of the Federalist Society, one of the nation’s most active conservative legal groups. 

The state Supreme Court ordered Evers’ to respond by 4 p.m. on Thursday, Oct. 22, to Fabick’s complaint, which alleges Evers abused his legal authority by issuing three emergencies related to the COVID-19 pandemic.

“This case presents a novel and pressing question of separation powers: can the executive branch keep Wisconsin in a perpetual state of emergency without authorization from the legislative branch?” Fabick’s filing reads.

Under state law, governors can issue states of emergency that last 60 days, and it is solely up to the Legislature to extend the declaration or end it early. 

However, the law does not specifically say whether governors can issue subsequent emergency orders over the same overarching emergency—in this case, the coronavirus pandemic. Evers justified his second and third emergency orders by citing practically uninhibited spread of the virus first spurred by schools reopening for the fall. The current mask order ends Nov. 21.

Fabick’s suit does not appear to have the backing of the Wisconsin Institute for Law and Liberty (WILL) or the Wisconsin Legislature, which both supported the previous lawsuit against Evers’ order. 

St. Croix County Circuit Court Judge Michael Waterman, a Scott Walker appointee, shot down WILL and the Legislature’s request to end the order in part because the Legislature can legally convene at any time to end Evers’ order early. 

Assembly Speaker Robin Vos (R-Rochester) and Senate Majority Leader Scott Fitzgerald (R-Juneau) have not called their chambers into session in more than 180 days, and Waterman chided them for asking the courts to do the lawmakers’ job for them.

“The legislature can end the state of emergency at any time, but so far, it has declined to do so,” Waterman wrote. “As the statewide representative body of the citizens of Wisconsin, the legislature’s inaction is relevant and it weighs against judicial intervention, especially when the requested intervention will have statewide impact.”

The outcome of Fabick’s lawsuit will likely be a toss-up, provided the Supreme Court agrees to hear arguments in the case. While conservatives hold the court with a 4-3 majority, conservative justice Brian Hagedorn has acted as a swing vote in several high-profile cases, including in May when he sided with the court’s liberal justices in defending Evers’ statewide stay-home order.

Evers’ team will also be in court Monday morning to present arguments in a lawsuit supported by the Tavern League of Wisconsin that aims to end Evers’ Oct. 7 emergency order restricting restaurants, bars, and other establishments to 25% of their occupancy limit. A Sawyer County judge this week halted the limit pending arguments in the case.