Arguments in Yet Another Lawsuit Over Measures to Protect Public Begin Monday in WI Supreme Court

Court’s decision in case over statewide mask order will have lasting implications for the state’s coronavirus response.

The Wisconsin Supreme Court will on Monday hear oral arguments in a lawsuit that could strike another permanent, crippling blow to Gov. Tony Evers’ ability to fight the coronavirus pandemic in the absence of the state Legislature, which has not passed a bill in more than 210 days.

The lawsuit is one of two major challenges to Evers’ extended statewide mask requirement, a policy supported by 72% of Wisconsinites. The suit set to be heard on Monday was filed by Jeré Fabick, a Waukesha County resident. His attorney is Matthew Fernholz, president of the Milwaukee Lawyers Chapter of the Federalist Society, one of the nation’s most active conservative legal groups. 

It is not related to the other major lawsuit challenging the order that legislative Republicans and the conservative Wisconsin Institute for Law and Liberty support.

Both suits argue Evers overstepped his legal authority by declaring three states of emergency over the coronavirus pandemic—one when he issued his Safer at Home order, one when he issued the mask mandate, and one when he extended it.

“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.

Assistant Attorney General Colin Hector argued Oct. 5 at a hearing for the WILL-backed suit that declaring consecutive emergencies for the pandemic is no different than doing so for a flooded river.

“[The new emergency order] was based on a distinct change in circumstance that is presenting extraordinary dangers to the state of Wisconsin,” Hector said.

The state Supreme Court’s four conservative justices fast-tracked Fabick’s lawsuit on Oct. 29 and scheduled arguments for Monday, just five days before the extended mask order will expire. 

If the Supreme Court leaves Evers’ order in place, there would presumably be nothing stopping him from declaring yet another state of emergency to extend it as Wisconsin hospitals are overwhelmed, coronavirus cases continue to skyrocket, and the Legislature remains dormant. The Legislature has the power to end emergencies at any time.

If Evers’ order is struck down and he is prevented from issuing further emergency orders, the governor—and all future governors—would be utterly beholden to the Legislature during pandemics or severe emergencies.

The Department of Health Services on Friday reported yet another record day with 7,777 new coronavirus cases, bringing the total number of cases to 301,165. There were 58 deaths, bringing the total to 2,573.