Will Supreme Court Act on Mask Mandate?

For nearly three months, the Wisconsin Supreme Court has been sitting on a case that is at the center of the Republican maneuver to kill the COVID-19 health emergency order that Gov. Tony Evers declared in January.

With the flurry of activity on Thursday — as a divided state Assembly ended the Jan. 19 emergency, finishing what the Senate started last week, only to see Evers promptly declare a new emergency and mask order —  that court case took on new importance.

In a statement after Evers’ new order, Senate Majority Leader Devin LeMahieu accused the governor of “flagrant disregard for the rule of law by issuing yet another illegal statewide mandate.”

LeMahieu added: “Now that the Legislature has affirmatively exercised our authority under Chapter 323” — the state’s emergency powers statute — “to revoke the overreach of executive emergency powers, we urge the Supreme Court of Wisconsin to end this constitutional crisis.”

Four of the seven Assembly Republicans who broke with their party on Thursday and voted with Democrats to preserve Evers’ Jan. 19 order made a similar appeal.

The language of the law

The legal premise behind the Republican resolution revolves around a single question: Was the Jan. 19 emergency declaration — and were the emergency orders that preceded it in November, September and August — individual emergencies? Or were they simply an extension of the first COVID-19 emergency that Evers declared soon after the pandemic began?

The new declaration that Evers issued Thursday only heightens that argument.

The first section of Chapter 323 states: “A state of emergency shall not exceed 60 days, unless the state of emergency is extended by joint resolution of the legislature.”

On March 12, 2020, Evers issued Executive Order 72, declaring the pandemic as a health emergency. That emergency reached its 60-day expiration date on May 11.

The next emergency declaration came more than two months later, with an executive order Evers issued July 30 that took effect Aug. 1 and included the state’s first mask order.

By the time the Senate voted Jan. 26, Evers had declared a public health emergency as a result of the pandemic three more times. The resolution to end the Jan. 19 emergency, introduced by state Sen. Steve Nass (R-Whitewater), declares that “the governor’s authority to address the COVID-19 coronavirus using the emergency powers identified in section 323.12 of the statutes expired on May 11.”

Disputed interpretation

That Republican interpretation of the law — which the Evers administration disputes — was the basis for two lawsuits that were filed last year opposing the subsequent emergency declarations and mask mandates.

In August, the Wisconsin Institute for Law & Liberty (WILL), a conservative law firm that has opposed the Evers administration on a number of other issues and is also challenging the authority of local public health department orders, filed a lawsuit claiming that the Aug. 1 emergency was an extension of the March 12 declaration — violating the 60-day limit and requiring the Legislature’s assent.

“The Governor lacks the power to unilaterally extend a state of emergency or to declare multiple states of emergency to deal with the same problem,” the lawsuit declared.

A circuit court judge declined to issue an injunction and let the emergency order stand pending a trial. The Legislature, the judge observed, never took any action to come into session and overturn the emergency declaration or the mask order.

Meanwhile the Wisconsin Supreme Court authorized Jeré Fabick, a Waukesha County man affiliated with the right-wing Heartland Institute, to file a second lawsuit directly with the high court. That suit makes the same argument: that each state of emergency starting with the one that took effect Aug. 1 was merely an extension of the first one. The Legislature’s Republican leaders endorsed the lawsuit.

The Supreme Court heard arguments on the Fabick case in mid-November. Representing the Evers administration, Hannah Jurss, an assistant state attorney general, argued that the shifting conditions in the COVID-19 pandemic could be compared to a flood that prompts the governor to declare a state of emergency.

As the flood emergency approaches its 60-day expiration, “new rainfall happens and the flooding resurges and a dam breaks,” Jurss said. “There is nothing in the plain language of the statute that says the governor could not look at those emergency circumstances and recognize that there is an occurrence that constitutes a disaster that creates an emergency.”

The case is still pending. Since it was argued, the governor issued a subsequent emergency declaration and mask order in November that carried the state into the new year, and the declaration and mask order that took effect Jan. 19 and the Legislature ended Thursday. The new declaration that Evers issued Thursday afternoon is his sixth.

In the Senate on Jan. 26, Evers had a rare Republican supporter in Sen. Robert Cowles (R-Green Bay), who had voted with the Democrats to preserve the health emergency and mask order. In a statement he issued after the vote, Cowles essentially endorsed the administration’s legal argument.

From his review of the emergency powers law, Cowles said, “I don’t see anything prohibiting a governor from declaring successive emergency orders under this 40-plus-year-old law which could have been clarified in 20-plus legislative sessions, including this session.”

Looking to the Court

It has been nearly three months since the state Supreme Court arguments. In the aftermath of Thursday’s Assembly vote and Evers’ new orders, that silence has reverberated.

In their joint statement Thursday afternoon explaining why they joined the Democrats to preserve the emergency and mask order, GOP Reps. Joel Kitchens (R-Sturgeon Bay), Jeffrey Mursau (R-Crivitz), David Steffen (R-Green Bay) and Ron Tusler (R-Harrison) said they voted out of concern for ending the mask mandate without anything to replace it.

At the same time, they expressed doubt about the legality of the multiple orders from the governor. But that was up to the courts to decide, they said.

“The Wisconsin Supreme Court has had this case for more than two months and we implore them to make a ruling as to whether or not the governor had the authority to issue his most recent order without legislative approval,” they said. Without “legal clarity,” they added, “the governor could continue to implement additional emergency orders every time the full Legislature passes a resolution” striking one down.

Why hasn’t the court decided yet?

“None of us know what the state Supreme Court’s reasoning really is,” says Rep. Mark Spreitzer (D-Beloit). “But I suspect some of it may have been that they knew the Legislature did have the power to engage in this process if it really wanted to. We saw for months that our Republican colleagues were complaining about what Gov. Evers was doing but weren’t interested in coming in and taking votes one way or the other to actually be part of the process of governing.”

Marquette University law professor Chad Oldfather offers three possible explanations for the court’s delay.

“One is that the justices are earnestly working through the hard questions,” Oldfather says via email. “Most cases take at least this long to resolve, and in the normal course of the appellate process that’s a feature rather than a bug.”

Another possibility is that the court wants the political branches to resolve it. “That’s not an unreasonable ask from a properly functioning state government,” he says — observing wryly, “And yes I do mean to imply that we don’t seem to have one of those right now.”

Or the Supreme Court — which has been widely seen as increasingly partisan in the last decade — “might be hoping to avoid having to weigh in on yet another hotly contested issue with clear partisan overtones,” Oldfather adds.

“In that sense the court would be looking to protect itself, essentially looking to run out the clock, hoping that the Legislature and governor will work things out so that it doesn’t have to expend more of its institutional standing by resolving yet another dispute that virtually everyone will regard it as having resolved by resort to politics rather than law,” he says.

Following that kind of strategy isn’t unusual, he notes. “It’s a big part of the explanation for why the U.S. Supreme Court just let the various Trump campaign challenges to the election results sit on its docket.”

And the answer might be some combination of each of those. “All of them could, to some degree or other, be part of the explanation,” Oldfather says. “And none of them is necessarily something that should be regarded as nefarious.”

Reprinted with permission of Wisconsin Examiner.