The Wisconsin Supreme Court has prevented Democratic Governor Tony Evers from issuing new emergency public health orders to order face masks. In an ideological 4-3 decision, the Conservative majority found that Evers had no authority over his orders. It is similar to a judgment denying orders from Michigan Governor Gretchen Whitmer. Most noticeable was the dissenting opinion of the three liberal judges. The deviant judiciary adopted the most complicated and artificial construct to ignore the clear meaning of the controlling state law.
Justice Brian Hagedorn wrote for the majority based on the explicit language of state law requiring governors to post health emergencies for 60 days, but then lawmakers must approve any extension. Hagedorn wrote: “The question in this case is not whether the governor acted wisely; it is whether he acted lawfully. We conclude that he did not. “
Look at the operative language and see if you can see the ambiguity that the dissenting judges rely on. I added the highlight in bold:
The governor may issue an executive order declaring a state of emergency for the state or part of the state if he determines that there is an emergency due to a disaster or the imminent threat of a disaster. If the governor determines that there is a public health emergency, he or she may issue an executive order declaring a state of emergency in relation to public health for the state or part of the state and the Ministry of Health as the lead state Determine authority to respond to this emergency. If the governor determines that the emergency is related to computer or telecommunications systems, he can designate the administration department as the lead to respond to the emergency. The state of emergency may not exceed 60 days, unless the state of emergency is extended by a joint decision of the legislature. A copy of the implementing ordinance must be submitted to the State Secretary. The executive ordinance may be revoked by executive ordinance or the legislature by joint resolution at the discretion of the governor.
This is a standard provision for states that have passed the Model State Emergency Health Powers Act (“MSEHPA”). The 2002 Model Act was controversial because of the unilateral power of the governors. I was one of those who wrote and refused such provisions as dangerous concentrations of authority. This model law allowed governors to unilaterally renew such declarations – a provision that I and several others specifically criticized.
Wisconsin is one of the states that heeded the criticism and refused to adopt MSEHPA’s provision that the public health emergency statement can be unilaterally renewed every 30 days. MSEHPA Section 405 (b). Instead, it kept its previous emergency order time limits. 2001 Wis. Act 109, Section 340L.
The record therefore seems very clear in both its language and its legal history. In contradiction, however, Judge Ann Walsh Bradley wrote that in light of the pandemic, the court should allow a more fluid reading: “This is not an ordinary case. We are in the midst of a global pandemic … at such high stakes the majority not only come to wrong conclusions, but also hide the consequences of their decision. Bradley relies on the interpretation of a word ‘occurrence’ that does not even appear in the operational definition, while the goals can determine the means of interpretation. The dissenting judges use an artificial construct to claim that this is not an emergency but a series of ongoing emergencies, even though they are all based on Covid-19. By doing this, they suggest that a governor could simply chain statements together by pretending that every island pandemic problem is another emergency. Indeed, the worsening of a pandemic was seen as a new “event”:
In contrast to Ordinance No. 72, which was designed to prepare Wisconsin for the fight against COVID-19, Ordinance No. 82 declared a new public health emergency in response to a “new and worrying surge in infections” that occurred without a rapid response Intervening “with unnecessarily grave consequences, illness or death will overwhelm our health systems, prevent schools from reopening completely, and unnecessarily undermine economic stability. . . . “Ordinance No. 82 states,” As of June 1, 2020, Wisconsin had 18,543 confirmed cases of COVID-19. As of July 1, 2020, there were 29,199 confirmed cases of COVID-19, a 57 percent increase from June 1. and on July 29, 2020 there were 51,049 confirmed cases of COVID-19, a 75 percent increase from July 1. “¶118 Accordingly, Order No. 82 was issued in response to a specific and discrete event.
This reasoning would effectively (and judicially) remove the express limitation of a 60-day rule under the law.
Rather than insisting on an objective and distanced reading of the law, the dissenting judges repeatedly return to the specter of the pandemic and the need for a single control person: “The ultimate consequence of the majority’s decision is that it will be another obstacle to an effective government response on COVID-19, which continues to threaten the health and lives of the people of Wisconsin. “
In the dissenting opinion, an interpretative approach was chosen that enabled a judicial reconstruction of the law to support the governor’s claim to comprehensive authority. You can read the opinion for yourself, but I found the dissenting opinion to be strikingly and dangerously detached from the explicit language of the law.
Here is the opinion: Fabick v. Evers