Evers faces third lawsuit over authority to make coronavirus restrictions

MADISON – Gov. Tony Evers faces a third lawsuit challenging his authority to issue emergency orders to combat the coronavirus pandemic without legislative approval.

The lawsuit comes the same day a top Republican lawmaker said the Legislature would not convene a floor session to vote down the governor’s health emergency that is subject of multiple legal challenges. 

Jeré Fabick, a prominent GOP donor and policy adviser at the conservative Heartland Institute who lives in Waukesha County, filed a lawsuit on Friday asking the state Supreme Court to take up the suit that argues Evers overstepped his authority by issuing new emergency orders after his initial health emergency expired.

The lawsuit, like others against Evers, argues the governor may not issue new emergency orders after his first one expired because the emergency — in this case the pandemic — is the same threat. 

State law says governors may issue health emergencies for 60 days at which point the Legislature must approve an extension. Evers has argued he may issue new emergencies because the pandemic’s threat has changed, similar to emergency declarations over separate flooding events in the same river.

“Both orders were based on the same circumstances as the initial state of emergency: the COVID-19 pandemic,” the lawsuit contends. “The Governor never sought approval from the Legislature to declare a second and third state of emergency, and all indications are that the Governor intends to continue declaring states of emergency due to COVID-19 until a court tells him otherwise.” 

The lawsuit was filed the same day Evers’ campaign made a six-figure ad buy criticizing Republicans for filing lawsuits against his effort to curb the spread of the coronavirus.

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Fabick, who is president of Caterpillar equipment dealer Fabick Cat, made a similar argument in a lawsuit filed in the spring over Evers’ original health emergency. 

He said then he would have participated in a protest at the state Capitol on April 24 that drew about 1,500 people if Evers’ order limiting non-essential travel was not in place — a restriction that violated his rights to free speech and assembly, according to the lawsuit. 

The conservative legal firm Wisconsin Institute of Law & Liberty also is appealing a St. Croix County judge’s decision this week to deny their motion to block Evers’ order to require face masks indoors in a lawsuit filed over Evers’ authority. 

A Sawyer County judge put on hold Evers’ emergency order to limit public gathering sizes, including capacity in bars and restaurants, in a lawsuit filed by the Tavern League of Wisconsin. 

Sen. Van Wanggaard, R-Racine, said earlier this month the Legislature would convene after the Nov. 3 election to end Evers’ health emergency and its orders if the lawsuits weren’t successful. 

But Assembly Majority Leader Jim Steineke, R-Kaukauna, told PBS Wisconsin on Friday the Legislature would not be doing that. 

Contact Molly Beck at molly.beck@jrn.com. Follow her on Twitter at @MollyBeck.