The Wisconsin Supreme Court on Wednesday struck down Gov. Tony Evers' statewide mask mandate, ruling that the Democrat exceeded his authority by unilaterally extending the mandate for months through multiple emergency orders.
The 4-3 ruling from the conservative-controlled court is the latest legal blow to attempts by Evers to control the coronavirus. It comes after Republicans in the Legislature voted to repeal the mask mandate in February, only to see Evers quickly re-issue it.
The court last May struck down Evers’ “safer at home” order, saying that his health secretary did not have the authority for such an order. Evers’ attempts to limit capacity in bars, restaurants and other indoor places were also blocked by a state appeals court in October.
In the latest case, the court ruled that any public health emergency issued by Evers is valid for just 60 days and can’t be extended without legislative approval.
“The question in this case is not whether the governor acted wisely; it is whether he acted lawfully. We conclude he did not,” Justice Brian Hagedorn wrote for the majority.
Evers spokeswoman Britt Cudaback didn’t immediately respond to a message seeking comment.
Justice Ann Walsh Bradley, a member of the court's three-justice minority, lamented in a dissent that the ruling hampers the ability of governors in Wisconsin to protect lives.
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“This is no run-of-the-mill case,” she wrote. “We are in the midst of a worldwide pandemic that so far has claimed the lives of over a half million people in this country. And with the stakes so high, the majority not only arrives at erroneous conclusions, but it also obscures the consequence of its decision. Unfortunately, the ultimate consequence of the majority’s decision is that it places yet another roadblock to an effective governmental response to COVID-19.”
Evers had argued that he can issue multiple health emergencies because of the changing nature of the ongoing pandemic. The mask order first took effect in August and Evers extended it four times since then, most recently on Feb. 4 immediately after the Legislature repealed it.
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Nearly 60 organizations opposed repeal of the mask mandate, including groups representing hospitals, doctors, nurses, EMTs, school administrators, businesses, children, unions, Milwaukee schools, American Indian tribes, pharmacists, firefighters, local health departments, senior citizens, churches and dentists.
With no state order in place, it will be up to local governmental units to enact their own mask policies. Many communities had moved to enact local ordinances as the Legislature looked to repeal the mandate. Mask orders are in place in cities including Milwaukee as well as Dane County, home to Madison.
When the court struck down Evers’ “safer at home” order in May it was controlled 5-2 by conservatives. In that ruling, Hagedorn sided with liberals in the minority in arguing the order should not be struck down.
But during oral arguments in the mask case on Nov. 16, Hagedorn questioned Evers’ authority to renew health emergencies beyond the 60-day limit. He said it was an “extraordinary grant of short-term power to the governor” and that “it seems like the Legislature wanted to allow for only a very short period of time.”
The case challenging the mask mandate was brought by Jere Fabick, a major Republican donor in Wisconsin who has given more than $350,000 to Republican or conservative candidates in Wisconsin between 1994 and the middle of 2020, according to the Wisconsin Democracy Campaign.
In 2016, Fabick gave $20,000 to conservative Wisconsin Supreme Court Justice Rebecca Bradley. Fabick is a board member and policy advisor for The Heartland Institute, a free-market think tank, and also the president of a multi-state Caterpillar equipment and engine dealer.
