By M.D, Kittle
MADISON —The Oconomowoc businessman who took Gov. Tony Evers to the state Supreme Court over his continuing public health order and accompanying mask mandate is asking the court to stop the governor’s latest power trip.
Jeré Fabick on Tuesday filed a petition asking the Supreme Court to issue a temporary injunction against Evers’ Executive Order 105, issued within minutes after the Republican-led Legislature passed a resolution ending Evers’ never-ending emergency declarations.
The 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.
“Governor Evers drastically altered the status quo of this case, and has plunged this State into a constitutional crisis,” the petition states. “Immediate action by this Court is necessary to restore the balance of power between the legislative and executive branches.”
As the lawsuit alleges, Evers has issued several 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’s attorneys have for months argued that the Republican-led Legislature could stop his emergency orders anytime it wanted through resolution. Last week, the Legislature did just that. Evers’ quickly thumbed his nose at the resolution and state law and issued the same emergency order.
Fabick’s petition notes liberal Supreme Court Justice Jill Karofsky during November’s oral arguments affirmed the Legislature could stop the order at anytime. So did Evers’ attorney.
“[A]nd if the legislature importantly disagrees with the Governor’s decision to issue a state of emergency order, it may revoke the order at will, and it doesn’t have to give a reason, it just may do so,” said Hannah Jurss, assistant state attorney general.
On Thursday, Evers did what Republican lawmakers warned he would do: disregard the Legislature’s resolution and issue a new health order.
Fabick noted in his Petition that without a judicial declaration prohibiting the governor from issuing successive emergency order declarations for the same public health emergency absent legislative approval, there was a real possibility Evers would simply issue new emergency order declarations in the face of a legislative resolution ending the emergency.
“Governor Evers downplayed this scenario, referring to it as a “hypothetical abuse of power,” the petition notes.
Evers’ legal team went as far as to assert the courts had no role to play in this dispute between the executive and legislative branches.
His actions over the last week underscore the importance of court intervention, Fabick’s petition states.
“There is now quite literally nothing to stop the Governor from keeping Wisconsin in a perpetual state of emergency short of an order of this Court,” the court filing alleges.