The Volokh Conspiracy

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Wisconsin S. Ct. Strikes Down Governor's Emergency Decrees


From the majority opnion in Fabick v. Evers, decided today by a 4-3 vote of the Wisconsin Supreme Court:

Wisconsin Stat. § 323.10 specifies that no state of emergency may last longer than 60 days unless it "is extended by joint resolution of the legislature," and that the legislature may cut short a state of emergency by joint resolution. The statute contemplates that the power to end and to refuse to extend a state of emergency resides with the legislature even when the underlying occurrence creating the emergency remains a threat. Pursuant to this straightforward statutory language, the governor may not deploy his emergency powers by issuing new states of emergency for the same statutory occurrence….

Read according to its plain language, in context, along with surrounding statutes, and consistent with its purpose, the best reading of Wis. Stat. § 323.10 is that it provides the governor the authority to declare a state of emergency related to public health when the conditions for a public health emergency are satisfied. But when later relying
on the same enabling condition, the governor is subject to the time limits explicitly prescribed by statute.

And from the dissent:

[T]he majority errs by purporting to engage in a straightforward statutory analysis. Yet, it omits any analysis of an essential word in Wis. Stat. § 323.02(16) that is outcome determinative. Left unanalyzed is the statutory term "occurrence," which when included in the analysis, proves to undermine the majority's conclusion and mandates a contrary result….

Applying our established definition of "occurrence" to Orders #82 and #90, it is apparent that each is based on a new set of on-the-ground facts, with each new set of facts posing a high probability of either "[a] large number of deaths or serious or long-term disabilities among humans" or "[a] high probability of widespread exposure to a biological … agent that creates a significant risk of substantial future harm to a large number of people." Thus, the orders were issued in response to separate occurrences and are permissible under the plain language of §§ 323.02(16) and 323.10.

Unlike Order #72, which was premised on preparing Wisconsin for the fight against COVID-19, Order #82 declared a new public health emergency in response to a "new and concerning spike in infections" that without quick intervention "will lead to unnecessary serious illness or death, overwhelm our healthcare system, prevent schools from fully reopening, and unnecessarily undermine economic stability …." …