By M.D, Kittle
MADISON — Gov. Tony Evers has trampled on the constitution’s separation of powers with his latest power grab, the Legislature’s Republican leaders charge in a brief filed Wednesday with the Wisconsin Supreme Court.
The amicus — or friend of the court – brief supports a petition sought by Oconomowoc businessman Jeré Fabick asking the court to slap an injunction on Evers’ sixth emergency declaration and accompanying statewide mask mandate. The lawmakers want the court declare Evers’ orders “void and unenforceable.”
Last Thursday, just minutes after the Republican-controlled Legislature passed a joint resolution ending Evers’ never-ending emergency orders, the governor ignored the will of the First Branch and issued another order and mask mandate.
“If there was any doubt as to whether the Governor believed there were limits on his powers under this statute, it evaporated on February 4, when he redeclared an emergency the same day the Legislature voted to revoke that declaration. (Executive Order #105),” the amicus brief, filed by Assembly Speaker Robin Vos (R-Rochester) and Senate Majority Leader Devin LeMahieu (R-Oostburg).
The state Supreme Court last year agreed to take Fabick’s complaint alleging the governor abused his executive powers in continuing to issue the health orders. Court watchers expect a ruling to come any day.
As the lawsuit alleges, Evers has issued six emergency order declarations. All but one were unlawful because the Legislature never approved an extension of the state emergency declaration as required under Wisconsin Statute 323.10. Evers’ emergency orders, beginning in late July, have come with a statewide mandate requiring Wisconsinites to wear a face covering in public.
The governor has insisted he ordered the mandate to stop the spread of COVID-19, but he has failed to follow state law in doing so. Evers was within his rights to issue his first emergency order when the pandemic first hit in March. But after 60 days he needed to seek the Legislature’s approval to extend the emergency declaration. Evers has shown time after time that he is not interested in working with his opponents in the Republican-controlled Legislature.
In May, the Wisconsin Supreme Court struck down an extended statewide lockdown carried out by Evers’ state Department of Health Services because the administration failed to seek the Legislature’s input. Even after conceding defeat, the governor and members of his staff secretly taped their discussions with Republican legislative leaders in a session to come up with a state-wide response to the pandemic.
Evers subsequently began issuing new orders, effectively extending the same order in violation of state law. Fabick’s lawsuit challenges the governor’s circumvention of the law.
The governor insists the 60-day limit doesn’t prevent him from issuing another declaration for the same underlying emergency “as facts on the ground develop.” As the Republican leaders’ brief notes, the phrase is “open to limitless interpretation that renders the statute’s 60-day time period meaningless.”
And if the governor can simply disregard the Legislature’s resolution and redeclare a state of emergency, there is no safeguard from the executive branch taking and keeping powers that do not belong to it.
“Wisconsin law does not allow the Governor to declare indefinite emergencies or reissue a state of emergency declarations after the Legislature’s revocation,” the brief states. “The Legislature respectfully requests that this Court rule in Petitioner’s favor and declare the Orders void and unenforceable.”