Wisconsin Supreme Court Finds Wisconsin Governor Acted Unlawfully On Mask Mandate

The Wisconsin Supreme Court blocked Democratic Gov. Tony Evers from issuing any new public health emergency orders to mandate face masks. In a 4-3 decision that broke along ideological lines, the conservative majority found that Evers lacked authority for his order. It is similar to a ruling rejecting orders by Michigan Gov. Gretchen Whitmer.  What was most striking was the dissenting opinion from the three liberal justices. The dissenting justice adopted the most convoluted and artificial construct to ignore the plain meaning of the controlling state law.

Justice Brian Hagedorn wrote for the majority based on the express language of the state law that mandates that governors may issue health emergencies for 60 days but then the Legislature must approve any extension.  Thus, Hagedorn wrote “The question in this case is not whether the Governor acted wisely; it is whether he acted lawfully. We conclude he did not.”

Look at the operative language and see if you spot the ambiguity relied upon by the dissenting justices. I have added the bolded highlight:

The governor may issue an executive order declaring a state of emergency for the state or any portion of the state if he or she determines that an emergency resulting from a disaster or the imminent threat of a disaster exists. If the governor determines that a public health emergency exists, he or she may issue an executive order declaring a state of emergency related to public health for the state or any portion of the state and may designate the department of health services as the lead state agency to respond to that emergency. If the governor determines that the emergency is related to computer or telecommunication systems, he or she may designate the department of administration as the lead agency to respond to that emergency. A state of emergency shall not exceed 60 days, unless the state of emergency is extended by joint resolution of the legislature. A copy of the executive order shall be filed with the secretary of state. The executive order may be revoked at the discretion of either the governor by executive order or the legislature by joint resolution.

This is a standard provision for states adopting the Model State Emergency Health Powers Act (“MSEHPA”). The 2002 model law was controversial due to the unilateral authority given to governors.  I was one of those who wrote and opposed such provisions as dangerous concentrations of authority.  That model law allowed governors to unilaterally renew such declarations — a provision that I and some others specifically criticized.

Wisconsin is one of the states the heeded the criticism and refused to adopt MSEHPA’s provision allowing for the public health emergency declaration to be unilaterally renewed every 30 days. MSEHPA § 405(b). Instead, it retained its prior time limitations on emergency orders. 2001 Wis. Act 109, § 340L.

The record therefore would seem abundantly clear in both its language and its statutory history.  However, in dissent, Justice Ann Walsh Bradley wrote that the court should allow for a more fluid reading in light of the pandemic: “This is no run-of-the-mill case. We are in the midst of a worldwide pandemic … with the stakes so high, the majority not only arrives at erroneous conclusions, but it also obscures the consequence of its decision.”  Bradley relies on the interpretation of a word “occurrence” that does not even appear in the operative provision while allowing the ends to drive the means on the interpretation.  The dissenting justices adopt an artificial construct to claim that this is not one emergency but a series of ongoing emergencies even though they are all based on Covid-19.  In this way, they suggest that a governor could just daisy-chain declarations by pretending that each insular pandemic concern is another emergency.  Indeed, the worsening of a pandemic was viewed as a new “occurrence”:

Unlike Order #72, which was premised on preparing Wisconsin for the fight against COVID-19, Order #82 declared a new public health emergency in response to a “new and concerning spike in infections” that without quick intervention “will lead to unnecessary serious illness or death, overwhelm our healthcare system, prevent schools from fully reopening, and unnecessarily undermine economic stability . . . .” Order #82 detailed that “on June 1, 2020, there were 18,543 confirmed cases of COVID-19 in Wisconsin; on July 1, 2020, there were 29,199 confirmed cases of COVID-19, a 57 percent increase from June 1; and on July 29, 2020, there were 51,049 confirmed cases of COVID-19, a 75 percent increase from July 1.” ¶118 Accordingly, Order #82 was issued in response to a specific and discrete occurrence.

That reasoning would effectively (and judicially) negate the express limitation of a 60-day rule under the law.

Rather than insisting on an objective and detached reading of the law, the dissenting justices repeatedly return to the specter of the pandemic and the need for a single figure in control:  “the ultimate consequence of the majority’s decision is that it places yet another roadblock to an effective governmental response to COVID-19, further jeopardizing the health and lives of the people of Wisconsin.”

The dissenting opinion adopted an interpretative approach that allowed for a judicial reconstruction of the law to support the governor’s claim of sweeping authority. You can read the opinion for yourself but I found the dissenting opinion to be strikingly and dangerously detached from the express language of the law.

Here is the opinion: Fabick v. Evers

93 thoughts on “Wisconsin Supreme Court Finds Wisconsin Governor Acted Unlawfully On Mask Mandate”

  1. The reason we have laws is so that people don’t have to/get to decide individual cases based on how they feel at that particular moment. The liberal and RINO justices in the world seem to see the law as something to find loopholes in to suit their own ends. If the law were a building, conservatives see the walls of the building (i.e. laws) as protection whereas the liberals are busy making holes in the walls because they’re too lazy to use the doors. The result is that the building i.e. the law will eventually fall down and we will have a state of anarchy.

  2. Fauci Unmasked

    Never has one man achieved so little, while taking so much credit. Finally, there’s a new book that puts Fauci where he belongs: in “the dustbin of history.” That the book is a bestseller is a hopeful sign.

    “If you look at the data now as we sit here today, the case fatality rate is 1.8%. The infection fatality rate, if you look at CDC, says we have ten times more cases than we’ve tested. That would put it at .18%. [Fauci’s] original cautious and modest estimations have turned out to be true. So then why did he abandon those for the fear porn we’ve seen the past year?” (From the author)

    _Faucian Bargain: The Most Powerful and Dangerous Bureaucrat in American History_, by Steve Deace, Todd Erzen


    1. Paging Rand Paul: I think we all understand now why your neighbor tackled you off of the riding mower.


      1. Paging basketball Bugs.

        Attacking the messenger while avoiding any discussion of the message, is a sure sign of a worthless troll, like you.

        1. Rand Paul is a smart guy. One need not agree with him to recognize that. Attacking him was uncivilized.

    1. Darren,

      I think you’re much to sharp to have been a Cop, I would have thought you’d have been a Fireman 1st.

      LOL;) I know, lame ole joke.

      1. Oky, Dan Bongino was SS and a cop in NYC. Look at him. He is smart. I think he will be taking over Rush Limbaugh’s spot in a couple of months.

        1. S Meyer,

          I like & respect Darren & Dan Bongino.

          I was thinking of a lame ole joke from years ago I would work Fireman on their off shift days & would repeatedly hear them joking around.

          A lot of guys like to try humor, bad humor, to attempt lighten up the days.

          Today in the US, with the George Floyd type Bullsh*t, Cops, Cop Retirees, Military, Vets, Christians, pro 2nd Amd people, All Pro Americans, etc., are all being Disrespected & Harmed by those G Damn Commie/Nazi types.. BML-antifa.., & their controllers, the Pedo Bidens, Shcumors, Pelosis & the rest of that Trash that have been Steal US Elections.

          Anyway, you might try countering my attempt at humor & say something like: The propaganda is that the Firemen have the Hottest Rods & Women all over town are asking the Firemen to stop by & put out their burning flame, but the next time they know the call the Cop. LOL:)

          1. OKY, your jokes are better than mine but some on the blog are a little loopy. I like police officers. I try never to get tickets for speeding, but I got one a number of years ago from a police officer in my own town. I thanked him for doing his job which made him feel appreciated. HE said he was sorry to give me a ticket because then he realized who my wife was but he said the rules were the rules and strict enforcement was the code of the day. I told him he was doing the right thing. I deserved the ticket and he was saving lives.

            Why does anyone want to hate police when for the most part they are running towards the bullets while the rest of us are hiding?

            1. S Meyer,

              All this George Floyd Crap & all of the Murders/Harm of innocent people & over 2 Billion $$$ destruction businesses/property over a damn dead doper because BLM-antifa- Old Media Terrorist reminded me of case a few years ago here when a white lady cop/others got a call on a black male stopped in the middle of the road acting a nut.

              The doper was outside the vehicle pacing & repeatedly refused to comply to the officer’s orders. Then the dumb ass reached back into the open window of a SUV.

              The officer of course shot/killed that idiot.

              All onm Video, cut & dried clean shooting. but because of pressure from local Idiots the DA at the time charged the officer. She was rightfully found not guilty by the jury.

              But because of all the death threats she was forced to quit TPD & move out of town.

              That crap has to end Now!

              There was an area cop out of Bartlesville OK 40 miles North of Tulsa week before last killed by a dope dealer. There was a service for him in Tulsa last weekend in which LE agencies from a wide area showed in force up in out respect & came down the main Highway.

              We were in the yard & could see/hear lights/sirens, it was at least a solid hour of them coming through & the same when the service was over & the went back.

              I’ve been thinking for a bit that it’s past time for the citizens, the AG/DAs Cop shops to grow a pair, I could be wrong, throw the tazer type toys away, bring in the Black Jacks, the Dogs, which they do use here or just shoot the idiots if they’re a threat to others & will not comply to a officers legal commands.

              That criminal type by Bidens/Co BLM-antifa has to be bought back under control or the whole country will be burnt to the ground & it’ll just be another 3rd world sh*t hole.

              With the videos at Banned.video this week of Pedo Bidens/Commie Dims/Rinos over running the S Border with illegals & Child Sex Slave Trafficking I don’t think the nation can take 4 years of their crap.

              1. “That crap has to end Now!”

                Oky, it’s not ending. Just look at this blog. Almost all the leftists are unwilling to follow their own logic. Those that have the ability to think have minds that are shut tight. They talk about things they hate and then they support the exact programs that they hate.

                We aren’t talking about more or less government here. We are talking about individuals that are acting like the pod people. They need to be hurt by what they are voting for before they wake up. Unfortunately with bellies fulll that likely will take a long time if ever.

                If you doubt what I am saying look around the world and see what is happening. Do you know that Canadians when returning to Canada have to be isolated in a cheap hotel serving things like cold pizza in ones room? 3 days at $2,000 a person. Then they have to isolate at home and this is despite a negative Covid test. What country or countries can you think of that pass over the tipping point and get back to where they were or were heading before they veered in the wrong direction?

                1. “Just look at this blog.”

                  Think about just how thin their lines really are.

                  No more then a dozen here & most of are likely just paid trolls to attempt to pump up the Commie/Nazi types positions. I don’t think they can sell those Turds no matter how hard the try.

                  Just like the old media, NYT, Wapo, CNN.etc., what few viewers they report the numbers are likely inflated.

                  Most people, even the ole style Dims/Rinos, Hate those Pedo loving/American Hating Creeps.

                  Hell, just like Pedo Biden, a slight light spring breeze causes them to fall down.

                  1. “Think about just how thin their lines really are.”

                    OKY, my bet is that the majority of Americans think more about their next meal and sports team then they do about what is happening. Government is in the background where it normally should be, but times are not normal so it should be in the foreground where people are worried about their individual liberty.

    2. Darren,

      Scream it from the Mountain.

      I’m not kidding!!!

      I’ve all ready been warning my groups before, now you & yours.

      Watch it until you understand it & tell others to do the same. I suggest. ::

      (( Emergency Saturday Broadcast! World Shocked By SPARS 2025-2028 Document



      Apr 3, 2021
      The Alex Jones Show
      The Alex Jones Show

      Here is a link to the SPARS Pandemic document. https://www.centerforhealthsecurity.org/our-work/Center-projects/completed-projects/spars-pandemic-scenario.html

      A 2017 Johns Hopkins document details plans for Big Pharma global domination. “This document is the holy grail. The key to defeating the globalist.” – Alex Jones

      Vitamin Mineral Fusion is back! Secure a bottle of the great-tasting energy drink with high-quality ingredients today! ))


    3. I also have doubts about the CDC barring evictions throughout the country. As I remarked earlier, I expect there to be many executive orders and mandates from administrative agencies that have little support in law. We are likely in for a rough, lawless time. I am hoping states can hold the line at least a bit, but it is hard to be optimistic.

  3. https://www.dailymail.co.uk/news/article-9428573/Derek-Chauvin-trial-Jury-hears-new-audio-cop-speaking-George-Floyds-death.ht

    “In cross examination Nelson tried to plant the seeds of an alternate narrative. He asked Pleoger to assume that an officer was engaged in struggle with a suspect and decided to use the Maximal Restraint Technique when the suspect suffered a medical emergency.
    He asked: ‘Would it be common for the officer to decide: “I’m not going to use the Maximal Restraint Technique at this point, I’m going to hold the suspect in place until the EMS arrive?”‘

    Pleoger replied: ‘Yes.’

    Nelson suggested that the use of force was ‘not necessarily attractive’ and that ‘sometimes officers have to do very violent things’. Pleoger agreed on both counts.”

    1. S. Meyer– That’s a good catch. The prosecution witnesses when they give anything more than tears seem to be helping the defense as much as the prosecution. Good cross by Nelson.

      I read somewhere today that Minneapolis is a fortress, expecting trouble and perhaps not completely confident there will be a conviction. After the deluge of ‘narrative’ from the media maybe some are beginning to realize they have been misinformed.

    2. Also good that a state’s witness said that an arrest and control of a suspect can be an uncomfortable thing to see. I hope the jury hears that again.

      I read that Floyd was getting ready to drive away in his drug haze in a Mercedes. How does he have a Mercedes when he needs phony money to buy cigarettes?

      1. The guy’s employer I think would dock the employees if they accepted counterfeit bills. That is a reason the clerk called the police and followed Floyd out the door. Do we call the employer a murderer? That is the logic of some on the blog. If the employer didn’t dock the employees they would never had called the police and Floyd would be alive.

        Do you note how after providing only the prosecutor’s interrogation Anonymous the Stupid gets all huffy because I added the other side. Anonymous the Stupid can’t help it. He has to fight. He is the Fighting Gerbil.

    3. Going to be near impossible to overcome Chauvin’s former commander testifying that maximal restraint shouldn’t be used after a suspect has been restrained. Not to mention the pics and footage of Chauvin clearly kneeling on Floyd’s neck as he was first unconscious, then dead.

      The obscure and abstractive reasoning you’re using here doesn’t pertain to conditions on the ground. It’s all map and no territory. Devil’s advocate reframing can work when there isn’t the stunning amount of visual evidence available that there is in this particular case, but here it just highlights a sort of angry cognitive dissonance that is trying to maintain that it’s okay for cops to go over the line and kill someone.


      1. Bug, I guess you didn’t understand what the cross actually meant. That is not due to an intellectual failure. It’s a perception failure that occurs with so much BS flying around in the media we all read.

        I hope you respond to my two responses regarding medical care late yesterday. We probably have more agreement than you realize, but I don’t think you understand fully the economics behind the problem. If I see a response we can work our ways back to basics, for though you didn’t express it properly, you were hitting on some of the basics that excluded the left and right garbage. I think you have a lot more pertinent things to say.

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