MADISON – The state Supreme Court agreed to take a case challenging Gov. Tony Evers’ emergency powers during the coronavirus pandemic Wednesday as Wisconsin’s COVID-19 cases continue to surge.
The case could imperil the Democratic governor’s ability to require people to wear masks and put capacity limits on bars, restaurants and stores. The capacity limits have already been blocked by a lower court, but his mask requirement remains in place for now.
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The Supreme Court agreed to take the case in a brief order, with the four conservatives in the majority and the three liberals in dissent. The majority put the case on a fast track, scheduling arguments for Nov. 16.
The decision to take the case comes less than a week before an election where the pandemic features prominently. It also comes as the state weathers record case numbers, including a high of 5,262 on Tuesday.
The majority did not explain its reasons for taking the case, but the dissenters contended it was unfair to take the case before having it first heard by lower courts.
“By accepting this petition absent even the bare minimum requirement that the petitioner allege some personal harm, this court flings open its doors to any and all taxpayers who are merely unhappy with any government official’s action,” Justice Rebecca Dallet wrote for the dissenters.
Jeré Fabick, a prominent GOP donor and policy adviser at the conservative Heartland Institute, brought the lawsuit this month. He asked the Supreme Court to take the case directly, rather than first taking it to a circuit court.
The suit alleges Evers no longer has the power to issue emergency orders because the initial emergency declaration he made in response to the pandemic has expired.
Republicans who control the Legislature didn’t agree to extend the emergency declaration, which automatically expired after 60 days, so Evers issued subsequent ones. Evers has argued he can issue multiple emergency declarations because the threat of the pandemic changes over time, much as a river may flood multiple times in one season.
Fabick, the president of Caterpillar equipment dealer Fabick Cat, has argued that’s not the case and has said Evers needs to get the permission of lawmakers to issue orders related to the pandemic.
If successful, the lawsuit would wipe out Evers’ emergency orders. That would effectively leave it to local officials to decide how to handle the pandemic.
In their order Wednesday, the justices told those bringing the case to delve into whether state law allows Evers to issue emergency orders and, if so, whether that law goes too far by turning over some of the Legislature’s responsibilities to the governor.
In the majority were Chief Justice Patience Roggensack and Justices Rebecca Bradley Brian Hagedorn and Annette Ziegler. In dissent were Dallet and Justices Ann Walsh Bradley and Jill Karofsky.
Two other cases over Evers’ emergency powers are pending in lower courts. The Supreme Court on Wednesday put on hold one of them that has challenged the mask mandate.
The third case deals with the capacity limits, which were blocked Friday by an appeals court as it considers the case.
Republican lawmakers successfully sued this spring to end the Evers’ administration’s stay-at-home order. They are not involved in the case the Supreme Court accepted on Wednesday, but they filed a brief in one of the other cases seeking to end the mask requirement.
Contact Patrick Marley at email@example.com. Follow him on Twitter at @patrickdmarley.