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 …." …

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  1. 4-3 split in the high court. I wonder what the ideological split was among the judges.

    If the emergency had instead been a 6.4 earthquake, I guess that the court majority is saying that, 3 months later, a 7.2 aftershock (that caused infinitely more damage than the first quake) is not a new occurrence…it’s a continuation of the original quake and therefore gives the governor no new emergency authorities.

    It’s an interesting legal/philosophical question. I personally am not convinced by the majority’s argument. But I do think it’s one that is being made in good faith.

    1. In Wisconsin the Supreme Court is split 4 to 3, but that is not solid and one of the conservative will vote what he thinks. So it is really 3 to 3 with a conservative swing vote.

    2. To me it seems pretty simple. Emergency powers are for… well, emergencies. Major one-off things that happen quickly, that require responses in a time frame where it’s too unrealistic to expect the legislature to be able to act. Most of the decisions on the early challenges to various states’ emergency powers were based on the early stage of the situation.

      We moved out of that territory a long time ago. There are no big surprises popping up, and indeed the trajectory is dramatically positive for all but the most dedicated panic-porn purveyors. Legislatures have had plenty of time to act if they feel long-term policies are necessary, and some states have indeed done so. But I read this opinion (hopefully the first of many) as saying it’s time for the slow dripping to stop.

      1. See, you said something key that seems to get lost in the discussion: Major one-off things that happen quickly, that require responses in a time frame where it’s too unrealistic to expect the legislature to be able to act.

        If a Legislature cannot act in a month on a question of statewide importance, of what use are they?

        1. Yes, the dissent is completely incorrect here, right?

          The point of emergency powers is to act at a time when a response is required more quickly than a legislature can act.

          If the notion is that every twist-and-turn in a crisis extends the emergency powers… well, that’s just a recipe for 50 mini-emperors running the states.

          1. To me, that is where the entire case turned, MikeM.

        2. If the legislature doesn’t within a month, it’s not an emergency.

    3. It seems highly unlikely that the majority is saying that. What would be more analogous is if the governor tried to say, “That 6.4 earthquake that happened three months ago left a lot of people without homes, and now winter’s coming, and they’re forecasting it being worse than normal, so I’m declaring a new occurrence based on the increased number of people who might freeze to death, even though the legislature refused to extend the state of emergency.”

    4. The majority is not saying that at all.

      The dissent, on the other hand, is trying to re-define “occurrence” to mean that we had a 6.4 earthquake on Jan 1 but the clock gets reset every single time we learn anything new. The unlimited clock reset interpretation makes a mockery of the statutory limitation since there will always be new information discovered after an emergency.

    5. This was not two earthquakes. It is one virus. If there was an emergency, it was a year ago, to flatten the curve so hospitals would not be overloaded.

      It’s amazing how many people have forgotten that. It ceased to be an emergency long ago.

      1. Evidence is lacking that it ever was an emergency in most US states.

        Yes, a few European countries saw their healthcare systems overwhelmed.

        What goes unmentioned is that those countries had capacity problems with their healthcare systems before the current pandemic and that the US has 2 – 3 times more ICU beds per capita as the countries who had problems with hospital capacity.

        The only place in the US that even came close to having that happen was NYC, yes, the city, not even the whole state of New York.

  2. These lockdowns are the biggest mistake in human history, except, they were the biggest fraud heist, scoring $1.7 trillion for the billionaire owners of the media and owners of the lawyer Dem Party.
    They scored $2 trillion for the Chinese billionaires, owners of the Chinese Commie Party.

    Fuck you, dirty lawyer traitors. Round them up and try them for an hour.

  3. The court is correct here. The Wisconsin Legislature is in the wrong, but that is nothing new. Among Wisconsin Republican Legislature, God and the citizens take a distant second to party loyalty.

    1. A curious comment given that the Court found in favor of the Legislature here. Perhaps the Wisconsin Legislature is not the only one looking at issues through reflexively partisan lenses?

      1. The Legislature is wrong to not continue to ask people to wear masks.

        1. The court said the Governor was wrong to demand that people wear masks beyond the legislatively granted emergency period.

        2. To clarify – Whether or not the Legislature is wrong as a matter of policy, the Governor was wrong as a matter of law.

        3. Except they didn’t people to wear masks. The governor demanded that people wear masks, or else! The only things government flunkies asked during this whole thing was to wash their hands and keep their distance. Everything else was a decree.

          1. Edit: Except they didn’t ask people to wear masks.

    2. Its not like Democrat legislatures are in a hurry to strip power from their governors either

  4. Presumably there is nothing stopping the governor from declaring a different emergency that mandates mask wearing, the Packers losing the NFC Championship for example, or global warming, or any other myriad reasons.

    1. Racism, obviously. If that’s no good, we got a whole basketfull of “-isms” to choose from.

  5. Good.

    Ohio passed a new law over Dewine’s veto limiting his powers. Looks similar to this one.

    1. A pity that the NJ People’s Duma, in the People’s Republic of NJ won’t do the same thing that OH evidently has. We have the absolute worst record in the US vis a via Covid: highest mortality rate per 100K residents, highest case count per 100K residents, highest death rate of seniors per 100K (by far). I mean, if ever there was a time you actually wanted a Legislature to take the reins is when the chief executive is just not doing the job competently….but our Legislature is nowhere to be found.

      1. No worries. NJ is number one in infections and deaths from COVID.

        1. Thank God I got vaccinated.

        2. “No worries. NJ is number one in infections and deaths from COVID.”

          Which is undoubtedly why Murphy has directed us New Jersey residents not to travel to other states. He wants to protect the rest of you from us.


      2. The Legislature was too busy changing the title of “Freeholder” to “Commissioner” to notice there was a pandemic going on.

        1. I mean, have you ever heard of something so idiotic? During the midst of a pandemic, our People’s Duma passed an important law to change the title of an elected position from ‘County Freeholder’ to ‘County Commissioner’. Gosh by golly, that name change really worked miracles here in the People’s Republic of NJ. Really made a meaningful difference in our lives…

          Only in NJ. We truly deserve the representation we elect.

          1. Well, Murphy’s immediate reaction to the George Floyd killing and resulting protests was to declare Juneteenth a state holiday. Because nothing contributes more to social justice and racial equity than giving mostly-white public employees another paid day off at taxpayer expense.

            1. Oh, and let’s not forget Phailing Phil marching with the crowds, not socially distanced….with quite a number of ‘unmasked’ in attendance. Surprised?

            2. Would you have preferred adding Juneteenth and removing Good Friday, Labor Day, Columbus Day, Veterans Day, or Christmas?

      3. I also live in NJ. Do you actually think that our legislature is more competent than our governor? Honestly, they are both a disaster. They only thing they know how to do is promote “diversity.” Beyond that, they are both completely incompetent.

        1. Yes, but here is the difference when the Legislature acts: Murphy and Senate President Sweeney hate each other as much as Cuomo and DiBlasio do in New York, so when legislation is on the table we get to see the two of them cancel each other out somewhat. But when Murphy exercises “emergency powers” he does not even have Sweeney to restrain him.

        2. SKofNJ…First, I am sorry you have to endure life in the People’s Republic of NJ. But endure we must….until we can retire and leave.

          You’re right….both the People’s Duma and Phailing Phil are utterly incompetent. 100% true.
          Number 2 is also right…The Murphy/Sweeney dynamic matters a lot.

  6. Where’s the limit in the dissent’s position?

    Could the governor declare an ongoing series of climate emergencies which would last forever?

    1. There isn’t one, and that’s the point.

  7. The dissenters practically defined “occurrence” as the tick of a clock (or…less sarcastically…any substantive change in state of the emergency in question). i.e. Flatten the curve. And if not…new emergency!

  8. The dissents logic is pretty tortured here. Reminds me of the rational basis test. That as long as the executive says “oh yeah that is a ‘new’ emergency'” then the court has to go along with it. If the legislature wanted to give such unfettered power to the executive it would not have provided for eventual review by each House.

  9. 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.

    I want at least a paraphrase. If the statue actually ruminates, how does the court read its mind? Seems like an important part of the argument has escaped mention in the OP.

    1. It’s a different sense of “contemplate.” Here it roughly means that the intent of the statue is to place that power with the legislature and so forth.

  10. Since it wasn’t included in the main article, here’s a link to the full text of the decision.

    Jeré Fabick v. Tony Evers

    1. Thanks for the link Matthew. Reading the decision, it seems a bit incoherent.

      1. The court acknowledges as a matter of fact that Covid has created a year-long state of public health emergency in Wisconsin, which is still ongoing.

      2. The court takes notice that the statute empowering the governor includes a forward-looking provision, allowing the governor to impose a state of emergency to meet anticipated conditions. But the court never thereafter returns to that.

      3. The court insists that the legislature has the power to decide how to manage emergencies after 60 days.

      4. The court describes what the legislature has done, which is nothing, except to tell the governor to stop.

      Given that set of facts, I suggest the court had a wiser alternative, which was fully within the intent of the statute. In the absence of counter-emergency activity from the legislature during an acknowledged emergency, let the court’s decision turn on the governor’s statutory forward-looking power, and use that as basis to decide renewed emergency declarations are indeed separate, and not continuations of previous ones.

      Or, to put it another way, I think the court could decide coherently that it was for the legislature to determine whether an emergency was actually over after 60 days—however contrary to fact that would have been—and therefore the legislature had power after such a decision to simply tell the governor to stand down. But to do that when an ongoing emergency is acknowledged by the court, and not contradicted by the legislature, seems contrary to the forward-looking part of the statute. To decide the case for the governor would have been wiser, and better reasoned.

      1. You didn’t do too good at reading the decision. Go back and re-read the section that discusses orders 104 and 105.

        The state Legislature did in fact cancel EO 104, and the governor immediately issued a new EO. No sorry, it doesn’t work like that.

        1. Slyfield, except for telling the governor to stop, what did the legislature do to cope with the emergency? Unless you can answer that, you ought to credit my remark, even if you disagree.

          As for how it works, I suggested a way it could work. You had nothing to say to that except a contradiction. But I didn’t leave room for your contradiction, because what I proposed was a suggested alternative, not an assertion the court was legally wrong. I did say the court was unwise, and could have been wiser had it decided for the governor, but still stayed within the text of the law.

          Tell me, given a law which explicitly allows emergency action based on prognosis, why can’t notably changed prognoses be the basis of successive emergency declarations? When, “We’re going to flatten the curve and whip this thing by Easter,” turns into, “No, it’s going to get worse instead of better,” why isn’t that a new and different emergency? When, “Thank God the disease is nearly gone,” turns into, “God help us, it’s surging back stronger, and now there are genetic variants which may defeat our vaccines,” why isn’t that a new and different emergency? Fairly obviously, those various occurrences called for policy shifts, not continuations.

          If you want, go back and find the opinion’s words, and quote them. That will show everyone how empty of reasoning they were. This is your chance. Support the court, and add the reasoning it didn’t bother with.

          1. “except for telling the governor to stop, what did the legislature do to cope with the emergency?”

            Who cares? No action is one of the policy choices, and frequently the best one (for example, we should not invade Canada this month).

            The point of divided powers is that the government can only take action with sufficient consensus. Emergency powers are a narrow exception to allow the executive to take actions needed sooner than the legislature can reasonably be assembled. They aren’t justification for the executive to take long lasting action just because the legislature won’t approve the executive’s preferred policies.

          2. except for telling the governor to stop, what did the legislature do to cope with the emergency?

            Not all emergencies require government action to “cope”.

            If the legislature decides to take no action, they face reelection. If reelected, the people have decided that the course of government non-action was proper.

          3. “Slyfield, except for telling the governor to stop, what did the legislature do to cope with the emergency?”

            It doesn’t matter WHAT they did, the point is that they DID something. They had the time to act, and they said no. If that’s a bad action, the people can vote them out. The Governor doesn’t have the authority to just ignore the people’s elected representatives because he doesn’t like what they’re doing. He has the right to issue short-term emergency actions to deal with situations where there isn’t time for the legislature to act. Once they have time to act, they have their authority back.

  11. You didn’t do too good at reading the decision. Go back and re-read the section that discusses orders 104 and 105.

    The state Legislature did in fact cancel EO 104, and the governor immediately issued a new EO. No sorry, it doesn’t work like that.

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