Wisconsin Supreme Court strikes down statewide mask mandate

The Wisconsin Supreme Court struck down Democratic Gov. Tony Evers' statewide mask mandate Wednesday, March 31, stripping the governor of one of his last remaining tools to curb large-scale spread of COVID-19 as the state stands on the precipice of another surge in infections.

"At the state level, it is gone. I respect the decision of the supreme court, even though I think it was erroneous on a legal issue and frankly a moral issue," Gov. Evers said on Wednesday. 

The conservative-leaning court ruled 4-3 that Evers violated state law by unilaterally issuing multiple emergency orders to extend the mandate for months.

The issue -- can the governor declare multiple 60-day health emergencies for the same pandemic when state law limits emergencies to 60 days and can be extended by the legislature? The Wisconsin Supreme Court heard oral arguments in November. 

"For him to issue those second and third emergency order declarations, he needed approval from the legislature. He didn’t receive it," said attorney Matthew Fernholz, who fought the order.

"The school year started and then boom, our numbers skyrocketed, driven for the first time by 18 to 24-year-olds. And Governor Evers issued Executive Order 90 to deal with those emergency circumstances -- not to a static or stagnant COVID-19 pandemic," said Hannah Jurss, assistant attorney general. 

Justice Brian Hagedorn wrote for the 4-3 majority, "The governor's power to act unilaterally on an emergency basis is limited by both a 60-day limit and by the legislature's power to terminate the emergency declaration."

Justice Ann Walsh Bradley dissented, saying, "We are in the midst of a worldwide pandemic that so far has claimed the lives of over a half million people in this country. And with the stakes so high, the majority not only arrives at erroneous conclusions, but it also obscures the consequence of its decision."

The decision comes after months of debate over the mandate. 

"I think many of us have supported that people have the right to wear masks.  Businesses have the right to require it. But we are far beyond the time when it’s the job of the government to tell people whether or not a mask is appropriate," said Assembly Speaker Robin Vos. "It should be the private sector. It should be the private business owner."

"The supreme court decision certainly is a step backwards. We encourage people all across the state to keep doing what they’ve been doing -- and that’s wearing a mask and staying socially distant," said Gov. Evers. 

Gov. Tony Evers

Gov. Tony Evers

Since August, the governor's health emergency has been the basis for the mask mandate. Without that state health emergency, the state will no longer qualify for extra federal food stamp money -- an estimated $49 million a month.

Local mask mandates remain in place. Milwaukee and Dane County, home to the state capital of Madison, both have issued such mandates. But invalidating the statewide order leaves Evers with few options to control spread on a broad scale.

Democratic Attorney General Josh Kaul, who defended the mask order, issued a statement urging people to continue to wear masks.

Republican lawmakers applauded the ruling. Senate Majority Leader Devin LeMahieu said in a statement that Evers abused his power and the court's decision affirms the separation of powers between the legislative and executive branches.

"The governor’s repeated abuse of emergency powers and pervasive violation of state statute created a state of chaos and had to be stopped," LeMahieu said.

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Nearly 60 organizations opposed repeal of the mask mandate, including groups representing hospitals, doctors, nurses, EMTs, school administrators, businesses, children, unions, Milwaukee schools, American Indian tribes, pharmacists, firefighters, local health departments, senior citizens, churches and dentists.

Wisconsin State Capitol, Madison

Wisconsin State Capitol, Madison

The case challenging the mask mandate was brought by Jere Fabick, a major Republican donor in Wisconsin who has given more than $350,000 to Republican or conservative candidates in Wisconsin between 1994 and the middle of 2020, according to the Wisconsin Democracy Campaign.

In 2016, Fabick gave $20,000 to conservative Wisconsin Supreme Court Justice Rebecca Bradley. Fabick is a board member and policy advisor for The Heartland Institute, a free-market think tank, and also the president of a multi-state Caterpillar equipment and engine dealer.

More reaction to SCOWIS ruling

Senate Majority Leader Devin LeMahieu (R-Oostburg)

"I applaud the Court for ending this constitutional crisis in our state. Their ruling upholds the separation of powers and the rule of law – core principles since the founding of our state and nation. The Governor’s repeated abuse of emergency powers and pervasive violation of state statute created a state of chaos and had to be stopped. The Legislature exercised its authority to revoke Governor Evers’ order in February, and today the Court handed down the final rebuke of the Governor’s illegal actions. 

"Today’s ruling vindicates the Legislature as a co-equal branch of government and will expand freedom and opportunity for the people of Wisconsin. As we work to fully and safely reopen our state, we trust our residents to follow CDC guidelines when appropriate, get vaccinated when ready, and always employ common sense."

Assembly Democratic Leader Gordon Hintz (D-Oshkosh)

"I am deeply disappointed in today’s decision by conservatives on the Wisconsin Supreme Court. They got it 100% backwards today. The majority’s decision pretends that a pandemic is unchanging and ignores the devastating human impact of COVID-19. And it ensures that Wisconsin’s response to future pandemics will be more complicated and take more time, which in turn will cost more lives.

"Politics should have no place in responding to a public health emergency. Yet today’s decision ensures politics will be front-and-center for all future public health emergencies in our state. I’m relieved and grateful that Wisconsin was protected by Governor Evers over the past year and that we are starting to see the light at the end of the COVID-19 tunnel. But after today’s ruling, I fear Wisconsinites’ health and safety will be at even greater risk in the future."2

State Senator Van Wanggaard (R-Racine) 

"Wisconsin Statute §323.10 expressly limits States of Emergency to 60 days unless extended by the legislature. The legislature has not extended any State of Emergency. In fact, legislature acted under Wis. Stat. §323.10 affirmatively ending the State of Emergency on January 28. Wisconsin has been in a State of Emergency for 245 consecutive days – more than six months longer than allowed under the law. 

"This case was never about the nature of the emergency. Good intentions, "science", and fear are not reasons to disobey the law. The statute does not grant exceptions, no matter the cause. By ignoring the law repeatedly, Evers decided to make this a political issue.  

"Governor Evers extended the emergency without the legislature’s consent in violation of the law, and blatantly ignored the legislature’s action to end the emergency. As Abraham Lincoln said "Laws without enforcement are merely good advice." Today, the Supreme Court enforced the rule of law. 

"People will certainly claim this is a partisan and political decision. It is only a partisan result if you think statutes only apply to one political party. They don’t."

Congresswoman Gwen Moore (D-Milwaukee)

"Another reckless and irresponsible decision from our state’s Supreme Court. From striking down the mask mandate to ruling against our state’s stay-at-home order to blocking Governor Evers from delaying our in-person primary, the GOP judges on the state Supreme Court have subordinated science to dangerous partisan fervor against public health and safety during this pandemic.  Even though partisan judges refuse to act in the interests of all Wisconsinites, we all must do our part to protect ourselves and others from COVID-19.

"I encourage all Wisconsinites to continue wearing their masks when they leave the house. COVID-19 does not go away just because our mask mandate did. This is why it’s also critical that every local government leader support measures that will help keep residents safe and healthy."

State Senator Julian Bradley (R-Franklin)

"Despite a cowardly delay, the Supreme Court finally got it right. Governor Evers' unconstitutional orders forcing a mask mandate on Wisconsinites were a clear abuse of power.

"The governor's brazen power grab became even more outrageous when he ignored the Legislature's resolution ending his order and continued to act unilaterally and illegally.

"The decision to finally uphold the rule of law is certainly welcome and long overdue."

State Senator Jon Erpenbach (D-West Point)

"There are two things this pandemic has taught us, masks work and Republicans don’t. While Governor Evers has worked diligently to protect the health and wellbeing of our communities, Republicans refused to do their job and undermined the Governor’s efforts every step of the way as thousands of Wisconsinites lost their lives to this virus. This Republican backed lawsuit has shown that Republicans will go to any length in their vendetta against the Governor even if it comes at the cost of human life.

"We have been in this pandemic for over a year now, and while the vaccination efforts provide a light at the end of the tunnel, we cannot trip at the finish line. The Centers for Disease Control has even stated that it is critical to continue safety measures such as face coverings, social distancing and getting vaccinated as we work closer towards herd immunity. We are so close to beating this and we cannot jeopardize the progress we have worked so hard for. Mask up and get vaccinated, Wisconsin."

State Senator Chris Kapenga (R-Delafield)

"Today’s decision from the Wisconsin Supreme Court is a win for the rights of the people of Wisconsin. The American form of government has protections built in to prevent any branch of government from being too powerful. Governor Evers abused his power to repeatedly declare emergencies. His unwillingness to follow the law threw our state into a constitutional crisis. This decision reinforces that one person cannot wield unchecked power over the people of Wisconsin indefinitely."

Democratic Party of Wisconsin Chair Ben Wikler

"Thanks to Governor Evers’s steady leadership throughout the pandemic, Wisconsin is a national leader in vaccinations and currently has one of the lowest rates of COVID-19 in the Midwest. Republican politicians in the Legislature took nearly 300 days to act on COVID, and  today the GOP is attempting to further sabotage our progress. Today’s far-right state Supreme Court ruling has nothing to do with the law. It is pure partisan politics, it is reckless, and it is dangerous. It will make our families less safe, and our schools and our economy more difficult to fully reopen. 

"The experts leading our federal response to this pandemic tell us that aside from getting vaccinated, wearing a mask is our best way to stop the spread of this deadly disease. But because of the radical conservative majority on our Supreme Court, Wisconsin will be forced to abandon the critical protections Governor Evers put in place, both threatening millions of dollars in federal food assistance every month for low-income people in Wisconsin and leaving our vulnerable loved ones at greater health risk.

"This latest radical ruling serves as a stark reminder of all that we must fight for in 2023, when Justice Roggensack’s term ends and we have an opportunity to elect a new justice who respects our laws, our Constitution, and the health and safety of our people."

State Representative Barbara Dittrich (R–Oconomowoc)

"Wednesday, the Wisconsin Supreme Court confirmed what I have been saying all along. Turning back the Governor’s overreach has never been about masks! Governor Evers exceeded his powers in issuing consecutive Executive Orders for the same, ongoing issue, the COVID-19 pandemic after 60 days without consulting the Legislature. Governor Evers’ actions went far beyond his constitutional authority in his repeated, dictatorial manner.

"When the Legislature overturned Executive Order #104 in February 2021, Governor Evers issued virtually the same order, Executive Order # 105 within minutes under the guise of protecting federal funding for the Wisconsin FoodShares Program. Yet, when given the opportunity to pass a bill that would allow the State of Wisconsin to accept the federal FoodShare dollars without a mask mandate being in place, the Governor vetoed the bill.  Not only has the Governor proven time and again that he believes he knows better than you do about your personal health decisions, he has taken unconstitutional authority to accomplish his own agenda.

"In an opinion written by Justice Brian Hagedorn, the Supreme Court’s decision affirms that a governor cannot and must not rule by fiat, lest they usurp the role of a co-equal branch of government. This important ruling will assure that no governor, present or future, can rule unilaterally, without accountability to the rule of law.

"To quote Justice Bradley, ‘While a pandemic will not follow the laws of man, the Governor must!’"

State Representative Cindi Duchow (R-Delafield)

"Today’s decision by the Supreme Court upholds the longstanding American principle of separation of powers and gives the Legislature a seat at the table for the first time in over a year. Governor Evers has repeatedly abused his emergency powers and even ignored the Legislature when it exercised its authority to revoke his order in February. His willful disregard for the law needed to be stopped, and I applaud the Supreme Court for giving power back to the people of Wisconsin.

"This decision is an indictment on Governor Evers’ unconstitutional edicts and not on the effectiveness of masks. I continue to encourage everyone to take preventative measures including wearing a mask, socially distancing with others, and washing your hands."

Rick Esenberg, President & General Counsel of Wisconsin Institute for Law & Liberty (WILL)

"Governor Evers abused the law and the constitutional separation of powers by declaring multiple, consecutive emergencies. This decision ensures that Wisconsin’s constitutional order cannot be suspended for unlimited periods of time as long as the executive branch can justify an emergency declaration."

Associated Press contributed to this report.

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