Jere Fabick v. Tony Evers

2021 WI 28SUPREME COURT OF WISCONSIN
CASE NO.: 2020AP1718-OA
COMPLETE TITLE: Jeré Fabick,
Petitioner,
v.
Tony Evers, in his Official Capacity
as the Governor of Wisconsin,
Respondent.
ORIGINAL ACTION
OPINION FILED: March 31, 2021
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: November 16, 2020
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
HAGEDORN, J., delivered the majority opinion of the Court, in
which ROGGENSACK, C.J., ZIEGLER, and REBECCA GRASSL BRADLEY,
JJ., joined. REBECCA GRASSL BRADLEY, J., filed a concurring
opinion, in which ROGGENSACK, C.J., joined. ANN WALSH BRADLEY,
J., filed a dissenting opinion, in which DALLET and KAROFSKY,
JJ., joined.
NOT PARTICIPATING:
ATTORNEYS:
For the petitioner, there were briefs filed by Matthew M.
Fernholz and Cramer, Multhauf & Hammes, LLP, Waukesha. There was
an oral argument by Matthew M. Fernholz.
An amicus curiae brief was filed on behalf of Derek Lindoo,
Brandon Widiker, and John Kraft by Richard M. Esenberg, Anthony
LoCoco, Luke Berg, and Wisconsin Institute for Law and Liberty,
Inc., Milwaukee. There was an oral argument by Richard M.
Esenberg.
An Amicus curiae brief was filed on behalf of Wisconsin
Legislature by Ryan J. Walsh, John D. Tripoli, and Eimer Stahl
LLP, Madison.
For the respondent, there was a brief filed by Hannah S.
Jurss, assistant attorney general; with whom on the brief was
Joshua L. Kaul, attorney general. There was an oral argument by
Hannah S. Jurss.
An amicus curiae brief was filed on behalf of Wisconsin
Legislature by Jessie Augustyn and Augustyn Law LLC; with whom
on the brief was Steve Fawcett, counsel for the assembly
speaker.
2
2021 WI 28NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2020AP1718-OA
STATE OF WISCONSIN : IN SUPREME COURT
Jeré Fabick,
Petitioner, FILED
v.
MAR 31, 2021
Tony Evers, in his Official Capacity as the
Governor of Wisconsin, Sheila T. Reiff
Clerk of Supreme Court
Respondent.
HAGEDORN, J., delivered the majority opinion of the Court, in
which ROGGENSACK, C.J., ZIEGLER, and REBECCA GRASSL BRADLEY,
JJ., joined. REBECCA GRASSL BRADLEY, J., filed a concurring
opinion, in which ROGGENSACK, C.J., joined. ANN WALSH BRADLEY,
J., filed a dissenting opinion, in which DALLET and KAROFSKY,
JJ., joined.
ORIGINAL ACTION for declaratory judgment. Declaration of
rights; relief granted.
¶1 BRIAN HAGEDORN, J. Over the last year, a dangerous
new virus has spread throughout the world, disrupted our
economy, and taken far too many lives. In response, Governor
Tony Evers declared multiple states of emergency under Wis.
No. 2020AP1718-OA
Stat. § 323.10 (2019-20),1 triggering a statutory grant of
extraordinary powers to the governor and the Department of
Health Services (DHS) to combat the emergent threat. The
question in this case is not whether the Governor acted wisely;
it is whether he acted lawfully. We conclude he did not.
¶2 Wisconsin Stat. § 323.10 specifies that no state of
emergency may last longer than 60 days unless it "is extended by
joint resolution of the legislature," and that the legislature
may cut short a state of emergency by joint resolution. The
statute contemplates that the power to end and to refuse to
extend a state of emergency resides with the legislature even
when the underlying occurrence creating the emergency remains a
threat. Pursuant to this straightforward statutory language,
the governor may not deploy his emergency powers by issuing new
states of emergency for the same statutory occurrence.
¶3 After declaring a state of emergency related to COVID-
19 in March 2020, Governor Evers issued executive orders
declaring additional states of emergency in July and again in
September. In this original action, petitioner Jeré Fabick asks
that we declare these second and third COVID-19-related
emergencies unlawful under Wis. Stat. § 323.10. We agree that
they are unlawful and so declare.
¶4 Since this case was argued, the Governor has declared
new states of emergency on an ongoing basis, each declared as or
All subsequent references to the Wisconsin Statutes are to
1
the 2019-20 version unless otherwise indicated.
2
No. 2020AP1718-OA
before the prior one expired. And the declaration now in
effect, Executive Order #105, was declared the same day the
legislature revoked the then-existing state of emergency by
joint resolution. Subsequent motions relating to these orders
have been filed while the court deliberated on this case. Among
them, we have also been asked to determine whether Executive
Order #105 was issued in compliance with the law. After
receiving briefing on these requests, we conclude that the state
of emergency proclaimed in Executive Order #105 exceeded the
Governor's powers and is therefore unlawful.
I. BACKGROUND
¶5 On March 12, 2020, Governor Evers issued Executive
Order #72 proclaiming "that a public health emergency, as
defined in Section 323.02(16) of the Wisconsin Statutes, exists
for the State of Wisconsin." In the order, the Governor
explained that "a novel strain of the coronavirus was detected,
now named COVID-19," and that "Wisconsin must avail itself of
all resources needed to respond to and contain the presence of
COVID-19 in the State." The order expired on May 11, 2020, 60
days after it was issued. It was not extended by the
legislature.
¶6 On July 30, 2020, Governor Evers issued Executive
Order #82, once more proclaiming "that a public health
emergency, as defined in Section 323.02(16) of the Wisconsin
Statutes, exists for the State of Wisconsin." The Governor
again cited the COVID-19 pandemic as justification for the
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No. 2020AP1718-OA
declaration of a public health emergency. On September 22,
2020, before Executive Order #82 expired, Governor Evers issued
Executive Order #90 also proclaiming a "public health emergency"
as defined by Wis. Stat. § 323.02(16) due to further challenges
from the COVID-19 pandemic.
¶7 In November, before Executive Order #90 expired,
Fabick petitioned for an original action challenging the
validity of Executive Orders #82 and #90 under Wis. Stat.
§ 323.10. We granted the petition.
II. DISCUSSION
¶8 The question presented is whether Governor Evers
exceeded his authority under Wis. Stat. § 323.10 when he
proclaimed states of emergency related to COVID-19 after a prior
state of emergency, also for COVID-19, had existed for 60 days
and was not extended by the legislature.2 We begin with the
Governor's challenge to the justiciability of this claim, and
then address the substance of Fabick's challenge.3
2 In addition to the statutory argument, the court also
asked the parties to address the following: "If Executive Order
#82 and Executive Order #90 are authorized by Wis. Stat.
§ 323.10, whether that statute is an unconstitutional delegation
of legislative power to the executive branch." Because we
resolve this on statutory grounds, we do not reach this issue.
3 Executive Order #90 expired in November. Governor Evers
stated and followed through on his intention to continue
declaring states of emergency under similar theories. It is
proper that this court provide clarity on an issue that is of
statewide significance, especially when the 60-day limitation on
these orders renders timely appellate review difficult.
Therefore, even if a mootness concern could be raised, review
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No. 2020AP1718-OA
A. Justiciability
¶9 Fabick seeks a declaration that Governor Evers acted
in violation of Wis. Stat. § 323.10. To obtain declaratory
relief, a justiciable controversy must exist. Loy v. Bunderson,
107 Wis. 2d 400, 409-10, 320 N.W.2d 175 (1982). A controversy
is justiciable when four conditions are met: (1) "A controversy
in which a claim of right is asserted against one who has an
interest in contesting it"; (2) "The controversy must be between
persons whose interests are adverse"; (3) "The party seeking
declaratory relief must have a legal interest in the
controversy——that is to say, a legally protectable interest";
and (4) "The issue involved in the controversy must be ripe for
judicial determination." Id. at 410; see also Milwaukee Dist.
Council 48 v. Milwaukee County, 2001 WI 65, ¶37, 244
Wis. 2d 333, 627 N.W.2d 866 (noting all four conditions must be
satisfied). Governor Evers argues that Fabick fails to satisfy
the first and third conditions.4
¶10 To satisfy the first condition——a claim of right
against one with an interest in contesting it——the claim must
assert "present and fixed rights" rather than "hypothetical or
satisfies generally recognized exceptions to the mootness
doctrine. See Marathon County v. D.K., 2020 WI 8, ¶19, 390
Wis. 2d 50, 937 N.W.2d 901 (listing the five mootness doctrine
exceptions).
4The second and fourth conditions——adversity and ripeness——
are not challenged by the Governor and are clearly satisfied
here.
5
No. 2020AP1718-OA
future rights." Tooley v. O'Connell, 77 Wis. 2d 422, 434, 253
N.W.2d 335 (1977). The Governor contends Fabick does not have a
claim of right because Wis. Stat. § 323.10 creates only a single
remedy——legislative action by joint resolution. We agree the
legislature has a substantive right protected by § 323.10, but
this does not mean a citizen challenge is off the table. This
is not a hypothetical matter; it is a real contest over legal
authority being claimed and exercised right now. The
Declaratory Judgments Act allows litigants to seek a declaration
of the "construction or validity" of a statute. Wis. Stat.
§ 806.04(2). That is what Fabick is doing. As a taxpayer,
under our well-established law, he has a legal interest (should
taxpayer standing be satisfied) to contest governmental actions
leading to an illegal expenditure of taxpayer funds. And the
Governor is the proper party with an interest in defending the
lawfulness of his actions. The first condition is satisfied.
¶11 Under the third condition, Fabick also asserted a
legally protected interest, a requirement often voiced in terms
of standing. See Tooley, 77 Wis. 2d at 438. In this case,
Fabick is not challenging any particular orders issued pursuant
to the declared states of emergency. Rather, he argues he has
taxpayer standing to challenge the state of emergency itself,
and we agree. "In order to maintain a taxpayer's action, it
must be alleged that the complaining taxpayer and taxpayers as a
class have sustained, or will sustain, some pecuniary loss."
S.D. Realty Co. v. Sewerage Comm'n of the City of Milwaukee, 15
Wis. 2d 15, 21, 112 N.W.2d 177 (1961). During oral argument,
6
No. 2020AP1718-OA
the Governor's counsel confirmed that the National Guard had
been deployed pursuant to the emergency declarations.5 This
expenditure of taxpayer funds gives Fabick a legally protected
interest to challenge the Governor's emergency declarations.
¶12 We therefore conclude Fabick's action is justiciable
and turn to the merits of his claim.
5 When the initial orders were challenged before us, it
appears the then-existing federal-state funding placed upon
Wisconsin taxpayers the responsibility to fund 25 percent of the
National Guard forces deployed in response to COVID-19. See
https://trumpwhitehouse.archives.gov/presidential-actions/
memorandum-extension-use-national-guard-respond-covid-19-
facilitate-economic-recovery/ (noting the federal government
funded 75 percent of the cost). As the dissent notes, it
appears the federal government may now be choosing to fund 100
percent of the National Guard expenditures. See Dissent, ¶98.
The dissent suggests that this change means Fabick has lost the
standing he had earlier in the case. However, a century's worth
of precedent makes clear that threatened, as well as actual,
pecuniary loss can be sufficient to confer standing. See Warden
v. Hart, 162 Wis. 495, 497, 156 N.W. 466 (1916) (noting a
taxpayer has standing when the taxpayer is "threatened with or
suffers a pecuniary loss"); see also, Krier v. Vilione, 2009
WI 45, ¶20, 317 Wis. 2d 288, 766 N.W.2d 517 ("the plaintiffs
must show that they suffered or were threatened with an injury
to an interest that is legally protectable"); State ex rel.
First Nat. Bank of Wis. Rapids v. M & I Peoples Bank of Coloma,
95 Wis. 2d 303, 308, 290 N.W.2d 321 (1980) (same); Marx v.
Morris, 2019 WI 34, ¶35, 386 Wis. 2d 122, 925 N.W.2d 112(same). If National Guard funding may be altered by the stroke
of the President's pen, as President Biden has apparently done,
this status quo can certainly be altered again. Taxpayer funds
have already been spent in support of National Guard deployments
pursuant to these emergency powers. The imminent threat of
unreimbursed costs, past and future, is sufficient to confer
taxpayer standing on Fabick under the circumstances of this
case.
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No. 2020AP1718-OA
B. Interpreting Wis. Stat. § 323.10¶13 Fabick's petition asks us to declare that Executive
Orders #82 and #90 proclaimed states of emergency contrary to
Wis. Stat. § 323.10's duration limitations.
¶14 At the outset, we must remember that our
constitutional structure does not contemplate unilateral rule by
executive decree. It consists of policy choices enacted into
law by the legislature and carried out by the executive branch.
Serv. Emps. Int'l Union, Local 1 v. Vos, 2020 WI 67, ¶31, 393
Wis. 2d 38, 946 N.W.2d 35. Therefore, if the governor has
authority to exercise certain expanded powers not provided in
our constitution, it must be because the legislature has enacted
a law that passes constitutional muster and gives the governor
that authority.
¶15 Some may wish our analysis would focus on ensuring the
Governor has sufficient power to fight COVID-19; others may be
more concerned about expansive executive power. But outside of
a constitutional violation, these policy concerns are not
relevant to this court's task in construing the statute.
Whether the policy choices reflected in the law give the
governor too much or too little authority to respond to the
present health crisis does not guide our analysis. Our inquiry
is simply whether the law gives the governor the authority to
successively declare states of emergency in this circumstance.6
6 The dissent, in contrast, spends considerable space
discussing outcome-focused concerns. But our role is not to
rule in favor of outcomes we like; it is to interpret and apply
the law, whether we like it or not.
8
No. 2020AP1718-OA
1. Statutory Structure
¶16 The legislative policy choice that decides this case
is found in the text of Wis. Stat. § 323.10 along with its
incorporated definitions. When interpreting statutory text, our
assignment "is to determine what the statute means so that it
may be given its full, proper, and intended effect." State ex
rel. Kalal v. Circuit Court for Dane Cnty., 2004 WI 58, ¶44, 271
Wis. 2d 633, 681 N.W.2d 110. To find this meaning, we interpret
the text "in the context in which it is used; not in isolation
but as part of a whole; in relation to the language of
surrounding or closely-related statutes; and reasonably, to
avoid absurd or unreasonable results." Id., ¶46; see also Wis.
Stat. § 990.01(1).
¶17 Here is the full text of Wis. Stat. § 323.10:
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
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No. 2020AP1718-OA
discretion of either the governor by executive order
or the legislature by joint resolution.
¶18 The first sentence gives the governor authority to
"issue an executive order declaring a state of emergency." Wis.
Stat. § 323.10. The governor may declare the state of emergency
"for the state or any portion of the state." Id. And the
condition enabling the governor to declare a state of emergency—
—the "enabling condition," as we will call it——is the governor's
determination "that an emergency resulting from a disaster or
the imminent threat of a disaster exists." Id. A "disaster" is
specifically defined in Wis. Stat. § 323.02(6). It "means a
severe or prolonged, natural or human-caused, occurrence that
threatens or negatively impacts life, health, property,
infrastructure, the environment, the security of this state or a
portion of this state, or critical systems, including computer,
telecommunications, or agricultural systems." § 323.02(6).
¶19 The second sentence of Wis. Stat. § 323.10 describes a
state of emergency related to public health. It is similar, but
contains key distinctions. The governor first has to
"determine[] that a public health emergency exists." Wis. Stat.
§ 323.10. The enabling condition here is a "public health
emergency," a phrase that is separately defined in Wis. Stat.
§ 323.02(16)——a definition we'll turn to shortly. When that
enabling condition is satisfied, the governor "may issue an
executive order declaring a state of emergency related to public
health for the state or any portion of the state." § 323.10.
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No. 2020AP1718-OA
¶20 As the Governor reads it, the first sentence of Wis.
Stat. § 323.10 is the operative, overarching, authorizing
sentence allowing a state of emergency to be declared in the
event of a disaster. In his telling, the next two sentences
simply state which agency leads the response for certain types
of emergencies——DHS serving as the lead agency for public health
emergencies. This reading is incorrect.
¶21 The first two sentences of Wis. Stat. § 323.10 contain
parallel but distinct authorizing language. If the second
sentence merely clarifies that DHS may be the lead agency, the
first half of that sentence (the governor "may issue an
executive order declaring a state of emergency related to public
health for the state or any portion of the state") would be
meaningless. It is only the second half of the sentence that
empowers the governor to "designate [DHS] as the lead state
agency to respond to that emergency." Id. Nor would a "public
health emergency" be a separately-delineated enabling condition.
The legislature could have just defined a public health
emergency as another kind of "disaster." It did not. The
enabling condition for a state of emergency related to public
health is a "public health emergency," not a "disaster," each
term having its own separate definition.
¶22 Moreover, the public health emergency authorization is
different than the language that follows it in Wis. Stat.
§ 323.10: "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
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No. 2020AP1718-OA
respond to that emergency." Here, the reference to computer or
telecommunication systems explicitly ties back into the
definition of a disaster in Wis. Stat. § 323.02(6), which
specifies that a disaster can be an "occurrence that threatens
or negatively impacts . . . critical systems, including computer
[and] telecommunications." Notably, this sentence contains no
separate authorizing language.
¶23 In short, the governor's emergency powers under Wis.
Stat. § 323.10 describe two types of emergencies, each with its
own enabling condition: a "disaster" as defined in Wis. Stat.
§ 323.02(6), and a "public health emergency" as defined in
§ 323.02(16).7
¶24 The executive orders under review here8 declared states
of emergency related to public health due to ongoing challenges
7 The dissent suggests the word "occurrence" rather than the
phrase "enabling condition" is the more appropriate lens through
which we should read the statute. However, the word
"occurrence" is nowhere to be found in Wis. Stat. § 323.10.
Rather, the governor's powers in § 323.10 are framed as a type
of if-then statement (albeit without an explicit "then"). That
is, if and only if the governor finds a condition met may he
declare a certain type of emergency. We use the phrase
"enabling condition" to explain what the statute clearly says.
It requires the condition be satisfied in order to enable, or
trigger, the ability to declare a state of emergency and deploy
emergency powers. The dissent's focus instead on the term
"occurrence" ignores that a "public health emergency" may be
declared upon either "the occurrence or imminent threat of an
illness or health condition." Wis. Stat. § 323.02(16) (emphasis
added). Therefore, the dissent's attempt to tie Wis. Stat.
§ 323.10's duration limitations solely to the term "occurrence"
misses the mark.
8 Executive Order #105, which was issued and raised after
initial briefing had been completed, is separately discussed
below.
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No. 2020AP1718-OA
in responding to COVID-19. All three proclaimed "that a public
health emergency, as defined in Section 323.02(16) of the
Wisconsin Statutes, exists for the State of Wisconsin." When
exercising this power, Wis. Stat. § 323.10 contains additional
relevant limits on the governor: the enabling condition and
duration limitations.
2. Enabling Condition
¶25 Wisconsin Stat. § 323.02(16) defines the enabling
condition for a state of emergency related to public health as
follows:
"Public health emergency" means the occurrence or
imminent threat of an illness or health condition that
meets all of the following criteria:
(a) Is believed to be caused by bioterrorism or a
novel or previously controlled or eradicated
biological agent.
(b) Poses a high probability of any of the following:
1. A large number of deaths or serious or long-term
disabilities among humans.
2. A high probability of widespread exposure to a
biological, chemical, or radiological agent that
creates a significant risk of substantial future harm
to a large number of people.
¶26 No one disputes that COVID-19 meets this definition.
COVID-19 is an "illness or health condition" caused by "a
novel . . . biological agent" that poses a high probability of
death, a risk sadly realized for thousands of Wisconsinites,
hundreds of thousands Americans, and millions more worldwide.
Even if it were a close call——and it's not——Wis. Stat. § 323.1013
No. 2020AP1718-OA
leaves the determination that a public health emergency exists
to the governor ("If the governor determines"). In any event,
COVID-19 presents a public health emergency that enables the
governor to declare a state of emergency related to public
health under § 323.10. That however, does not end the analysis
because § 323.10 imposes a second set of limitations on the
governor's power.
3. Duration Limitations
¶27 This brings us to the duration-related limitations in
Wis. Stat. § 323.10. The statute provides that a state of
emergency "may be revoked at the discretion of either the
governor by executive order or the legislature by joint
resolution," and a "state of emergency shall not exceed 60 days,
unless the state of emergency is extended by joint resolution of
the legislature." § 323.10. These directives can be distilled
into three statutory commands. First, the initial duration of a
state of emergency is determined by the governor, but it "shall
not exceed" 60 days. Second, a state of emergency may be cut
shorter than the initial duration by either the governor through
executive order or by the legislature through joint resolution.
Finally, a state of emergency may be extended longer than 60
days by the legislature alone.
¶28 These are clear statutory commands, plainly stated.
They compel the conclusion that the legislature enacted Wis.
Stat. § 323.10's time-limiting language to meaningfully
constrain the governor's authority to govern by emergency order.
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No. 2020AP1718-OA
The plain language of the statute explains that the governor
may, for 60 days, act with expanded powers to address a
particular emergency. Beyond 60 days, however, the legislature
reserves for itself the power to determine the policies that
govern the state's response to an ongoing problem. Similarly,
when the legislature revokes a state of emergency, a governor
may not simply reissue another one on the same basis.
Therefore, where the governor relies on the same enabling
condition for multiple states of emergency, or declares a new
state of emergency to replace a state of emergency terminated by
the legislature, the governor acts contrary to the statute's
plain meaning. If it were otherwise, § 323.10's duration-
limiting provisions would cease to perform any meaningful
function. These limitations would be no more than perfunctory
renewal requirements and would serve as merely a trivial check
on indefinite emergency executive powers. The text of § 323.10
therefore must be read to forbid the governor from proclaiming
repeated states of emergency for the same enabling condition
absent legislative approval.9
9 See
Midwest Inst. of Health, PLLC v. Gov. of
Mich., N.W.2d , 2020 WL 5877599, *6-8 (Mich. 2020)
(interpreting similar time-limiting language in a Michigan
statute empowering the governor to declare states of emergency
to impose meaningful time constraints on the governor's power).
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No. 2020AP1718-OA
¶29 This straightforward reading of Wis. Stat. § 323.10 is
further confirmed by related provisions and statutory context.10
Its statutory neighbor, Wis. Stat. § 323.11, outlines a similar
emergency declaration power for local governments.11 If certain
conditions support it, a local government may declare an
emergency by the "governing body of any local unit of
government." § 323.11. But notably, "The period of the
emergency shall be limited by the ordinance or resolution to the
time during which the emergency conditions exist or are likely
to exist." Id. This unmistakably shows that when the
legislature wishes to authorize an emergency response that is
coextensive with the emergency conditions, it knows how to say
so. And quite conspicuously, it did not say so in the
immediately preceding section, § 323.10, discussing the
governor's ability to declare a state of emergency. The most
reasonable way to read these provisions together, as we must, is
that the governor's power is more circumscribed. 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.
See State ex rel. Kalal v. Circuit Court for Dane Cnty.,
10
2004 WI 58, ¶46, 271 Wis. 2d 633, 681 N.W.2d 110 ("[S]tatutory
language is interpreted in the context in which it is used; not
in isolation but as part of a whole; in relation to the language
of surrounding or closely-related statutes.").
The emergency powers of local governments are described
11
in Wis. Stat. § 323.14(4).
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No. 2020AP1718-OA
¶30 Statutory history supports this interpretation as
well.12 The original predecessor to modern-day Wis. Stat.
§ 323.10 was enacted in the 1950s during an escalating Cold War.
It authorized the governor to proclaim a state of emergency
"[w]hen the governor finds that a disaster due to an act of war
is imminent or has occurred." Wis. Stat. § 21.02(2) (1955-56).
This statute contained no time limit at all, stating: "The
governor shall revoke the proclamation by order, or the
legislature may revoke the proclamation by joint resolution,
whenever either shall deem it appropriate." Id. However, it
also required the governor to "call the legislature into special
emergency session." Id. The natural expectation was that the
legislature would have something to say about how Wisconsin
should respond to ongoing threats.
¶31 In 1959, the law was amended. Ch. 628, Laws of 1959.
It expanded the circumstances under which an emergency may be
declared to when "an emergency resulting from enemy action
12"By analyzing the changes the legislature has made over
the course of several years, we may be assisted in arriving at
the meaning of a statute." Richards v. Badger Mut. Ins. Co.,
2008 WI 52, ¶22, 309 Wis. 2d 541, 749 N.W.2d 581 (citing Kalal,
271 Wis. 2d 633, ¶69). Statutory history, which "encompasses
the previously enacted and repealed provisions of a statute,"
"is part of a plain meaning analysis." Id.; see also Wis. Stat.
§ 990.001(7) ("A revised statute is to be understood in the same
sense as the original unless the change in language indicates a
different meaning so clearly as to preclude judicial
construction."); Antonin Scalia & Bryan A. Garner, Reading Law:
The Interpretation of Legal Texts 256 (2012) ("If the
legislature amends or reenacts a provision other than by way of
a consolidating statute or restyling project, a significant
change in language is presumed to entail a change in meaning.").
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No. 2020AP1718-OA
exists" or when "an emergency growing out of natural or man-made
disaster, except from enemy action, exists." Wis. Stat.
§§ 22.01(4)(e), 22.02(1) (1959-60). The legislature removed the
requirement that the legislature be called into session,
however. Instead, it imposed time limitations on emergency
declarations.13 For enemy-action-related disasters, the
legislature added: "The period of the state of emergency shall
not extend beyond 60 days unless extended by joint resolution of
the legislature." § 22.01(4)(e) (1959-60). And for natural or
man-made disasters, "The period of the state of emergency shall
not extend beyond 30 days unless extended by joint resolution of
the legislature." § 22.02(1) (1959-60). This basic framework
remained for decades, albeit with some reorganization and other
minor changes.
¶32 Then in 2002, the legislature adopted portions of a
Model State Emergency Health Powers Act ("MSEHPA") that had been
13Chapter 628, Laws of 1959, was initially proposed to the
legislature by the Office of Civil Defense. In its initial
form, the proposal did not contain a time limitation. Citing
constitutional concerns with the mandatory legislative session
call in the 1955 law, the proposal eliminated the requirement
that the governor call a special session after declaring a state
of emergency. Through the legislative process, the legislature
agreed to eliminate the requirement to call a legislative
session, but it added the time limit, replacing one constraint
on emergency power with another.
Although we tread carefully when drawing inferences from
legislative history, the evidence from the drafting process here
supports reading Wis. Stat. § 323.10's time-limiting language to
meaningfully check the governor's emergency powers. See Kalal,
271 Wis. 2d 633, ¶51 (noting that legislative history may be
consulted to confirm a plain meaning interpretation).
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proposed in the wake of 9/11.14 These revisions, adopted in 2001
Wis. Act 109, added the public health emergency to Wisconsin
law. 2001 Wis. Act 109, §§ 340j, 340L. The legislature
borrowed extensively from the model act in drafting these
provisions, including its definition of a "public health
emergency." MSEHPA § 104(m) (Ctr. for L. and the Pub.'s Health
at Georgetown and Johns Hopkins Univs., Proposed Official Draft
Oct. 23, 2001); 2001 Wis. Act 109, § 340j. But the legislature
did not adopt every model provision. Notably, it did not adopt
the proposal to allow the governor to renew the public health
emergency declaration every 30 days. MSEHPA § 405(b). Rather,
it incorporated this language into its already-existing
emergency declaration language with its already-existing time
limitations. 2001 Wis. Act 109, § 340L.
¶33 In 2009 Wis. Act 42, the legislature renumbered the
statute as Wis. Stat. § 323.10 and added emergencies related to
computer or telecommunications systems. 2009 Wis. Act. 42,
§ 72. It also eliminated the 30- and 60-day distinction and
adopted a universal 60-day limit for all states of emergency.
Id.
¶34 Viewing this history as a whole, it confirms the plain
meaning of the statutory language. The initial time-unlimited
The September 11, 2001 attacks were "the deadliest
14
terrorist attacks on American soil in U.S. history." Nineteen
terrorists undertook a series of airline hijackings, crashing
the hijacked aircraft into occupied buildings. Tragically,
nearly 3,000 people lost their lives in the attacks.
https://www.britannica.com/event/September-11-attacks.
19
No. 2020AP1718-OA
state of emergency with a call for a legislative session was
restructured, creating a time-limited set of emergency powers,
extendable only by the legislature and subject to the
legislature's termination. The governor——and, in a public
health emergency, DHS——are given some time to exercise
extraordinary powers when an emergency occurs. This is the
nature of an emergency; it is an unplanned event that warrants
immediate attention and may not lend itself to a timely
legislative response.
¶35 In this context, it makes sense that the legislature
would allow the executive branch to exercise emergency powers
only on a temporary basis. During a state of emergency, the
statutes give the governor expanded powers, including the
ability to:
 Prioritize some emergency-related contracts over
others, Wis. Stat. § 323.12(4)(a);
 Issue orders "for the security of persons and
property," § 323.12(4)(b);
 Enter into contracts to respond to the emergency,
§ 323.12(4)(c);
 Suspend administrative rules, § 323.12(4)(d); and
 Waive fees for certain permits, licenses, or
approvals, § 323.12(4)(e).
A state of emergency related to public health triggers
additional statutory powers. For example, DHS is given
temporary power to purchase vaccines, Wis. Stat.
§ 250.042(2)(a), to order individuals to be vaccinated, Wis.
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Stat. § 252.041(1)(a), and to isolate or quarantine individuals
who are unable or unwilling to be vaccinated, § 252.041(1)(b).
Also, under Wis. Stat. § 252.06, certain expenses incurred
during a state of emergency related to public health may be paid
from specific appropriations, meaning a declared public health
emergency can require state taxpayers to pay for certain
expenditures. See § 252.06(10)(c).15
¶36 The statutory language suggests the legislature gave
the executive branch expansive, but temporary, authority to
respond to emergencies.16 When the governor employs those powers
beyond the time limits imposed by the legislature, or after
revocation of those powers by the legislature, he wields
authority never given to him by the people or their
representatives. We conclude that Wis. Stat. § 323.10's
duration-limiting language forbids the governor from declaring
successive states of emergency on the same basis as a prior
15We cite and perfunctorily summarize these powers to
illustrate the expanded authority reflected in the statutory
design. We do not interpret these provisions here, nor do we
opine on the constitutionality of any of these or other related
provisions.
The dissent finds it an absurd result that a governor's
16
power to act on an emergency basis would be temporary and
terminable by the legislature when a threat like the present
virus exists for an extended period of time. Quite the
contrary. It is not only not absurd, it is eminently reasonable
to think that the legislature drafted a law that conferred
limited executive power to act unilaterally, but reserved for
itself the power to enact or not enact laws to guide the state
through a prolonged crisis. Legislative, rather than executive,
policy-making is how our constitutional design ordinarily works.
21
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state of emergency, and that the governor may not reissue a new
emergency declaration following legislative revocation of a
state of emergency declared on the same basis.
C. Application
¶37 In support of the challenged emergency declarations
before us, the Governor argues the 60-day limit is no bar to
multiple declarations of emergency based on the same public
health emergency. Our analysis above forecloses this
interpretation. But the Governor makes an alternative argument.
He asserts that each declaration was supported by differing on-
the-ground conditions related to COVID-19. In essence, he
argues the ups and downs of COVID-19 have created independent
enabling conditions thereby renewing his power to declare a new
state of emergency with each new front in the fight against
COVID-19. The dissent agrees. It argues that a new emergency
may be declared as long as the governor drafts "a new set of on-
the-ground facts." Dissent, ¶116.
¶38 This approach, however, does what a proper
consideration of the entire statute does not permit——it reads
the duration limitations right out of the law. A governor will
surely have little difficultly drafting a new emergency order
stating that the challenges or risks are a little different now
than they were last month or last week. So long as the
emergency conditions remain, the governor would possess
indefinite emergency power under this atextual theory. The more
reasonable reading is that the 60-day time limit and legislative
22
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revocation power are real limitations that constrain the
governor's power to deploy emergency powers with regard to that
emergency. Statutory restrictions on executive power cannot be
avoided by modest updates to the "whereas" clauses of an
emergency declaration.
¶39 We recognize that determining when a set of facts
gives rise to a unique enabling condition may not always be
easy. But here, COVID-19 has been a consistent threat, and no
one can suggest this threat has gone away and then reemerged.
The threat has ebbed and flowed, but this does not negate the
basic reality that COVID-19 has been a significant and constant
danger for a year, with no letup. In the words of the statute,
the occurrence of an "illness or health condition" caused by a
"novel . . . biological agent" has remained, unabated.
¶40 In this case, we conclude that Governor Evers relied
on the same enabling condition for the states of emergency
announced in Executive Orders #72, #82, and #90. The states of
emergency proclaimed in Executive Orders #82 and #90 therefore
reached beyond the power given to the governor under Wis. Stat.
§ 323.10, impermissibly extending the use of emergency powers in
violation of the time limitations explicit in the statute. It
matters not that the legislature did not take action to revoke
these emergency declarations initially challenged by Fabick.
Whether the legislature exercises its authority to terminate an
unlawfully declared state of emergency has no bearing on whether
it was lawful.
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No. 2020AP1718-OA
¶41 Several times in briefing before this court, and at
oral argument, the Governor suggested Wis. Stat. § 323.10's
provision giving the legislature authority to revoke a state of
emergency supported his reading of the 60-day time limit as
permitting renewals precisely because the legislature had an
effective check. Since this case was argued, however, the
legislature did revoke the state of emergency declared in
Executive Order #104, only to have a new one——in Executive Order
#105——immediately declared by the Governor. In post-argument
motions and briefing, Fabick asks that we declare Executive
Order #105 invalid as well. This case has come to us on a
petition for original action and, somewhat atypically, it
touches subsequent and evolving orders on the same matters.
Therefore we believe the ongoing emergency orders are properly
before us. After hearing from both parties, we conclude it is
appropriate for us to address Executive Order #105.17
¶42 As we have discussed, Wis. Stat. § 323.10 provides
that an emergency declaration order "may be revoked at the
discretion of . . . the legislature by joint resolution." In
order to have any effect, this provision must mean that the
governor may not simply reissue an emergency declaration revoked
The dissent focuses on Fabick's more limited request for
17
a temporary injunction of Executive Order #105, but he did
request permanent relief as well. Fabick plainly seeks a
decision from this court making clear that Executive Order #105
was issued in excess of the Governor's powers. The declaratory
relief we choose to grant in this case is appropriate.
24
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by the legislature.18 Any other interpretation would render the
legislature's statutory power to revoke an emergency declaration
illusory. The statute gives the legislature the power to
override a governor's declaration of emergency, not the other
way around.
¶43 The Governor defends Executive Order #105 as different
than Executive Order #104 on something he says is new——the
purported loss of federal nutrition benefits——along with updates
regarding the current threats presented by COVID-19. However,
if an emergency declaration is a prerequisite to receiving these
funds, this was no less true during the operation of Executive
Order #104, which the legislature revoked. The Governor cannot
make an end run around legislative revocation simply by
itemizing a previously unidentified justification for the state
of emergency. Reading the statute to encourage a game of whac-
a-mole between the governor and legislature would defeat Wis.
Stat. § 323.10's explicit legislative check on the governor's
emergency power. The legislature has exercised its statutory
In its original merits briefing, the Governor repeatedly
18
assured the court that the legislature had the power to end a
state of emergency. For example, the Governor argued, "Wis.
Stat. § 323.10 explicitly empowers the Legislature to determine
the propriety of an executive order declaring a state of
emergency. If the Legislature concludes Governor Evers
improperly issued Executive Order 90, the Legislature may revoke
it at will." And again, "If the Legislature believes the
Governor has issued an improper state of emergency order, it can
take immediate action to end it."
25
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power to revoke Executive Order #104. Accordingly, we declare
Executive Order #105 unlawful.19
III. CONCLUSION
¶44 Read according to its plain language, in context,
along with surrounding statutes, and consistent with its
purpose, the best reading of Wis. Stat. § 323.10 is that it
provides the governor the authority to declare a state of
emergency related to public health when the conditions for a
public health emergency are satisfied. But when later relying
on the same enabling condition, the governor is subject to the
time limits explicitly prescribed by statute. Therefore, we
declare that Executive Orders #82 and #90——both of which declare
a public health emergency in response to COVID-19——were unlawful
under Wis. Stat. § 323.10.
¶45 We also received a motion and briefing on the
lawfulness of Executive Order #105. Based on the legislature's
revocation of Executive Order #104, a power specifically granted
to the legislature in Wis. Stat. § 323.10, we declare Executive
Order #105 unlawful as well.20
19As a necessary consequence, all executive actions and
orders issued pursuant to the powers triggered by the emergency
declaration are likewise void.
20In addition, Fabick asked us to take judicial notice of
Executive Orders #95 and #104. We have already taken judicial
notice of Executive Order #95, and we also take judicial notice
of Executive Order #104. Fabick also sought a temporary
injunction of Executive Order #105, which is denied as moot.
26
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By the Court.——Rights declared; relief granted.
27
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¶46 REBECCA GRASSL BRADLEY, J. (concurring). "[W]e have
a government of laws and not of men."1 Governor Tony Evers'
successive declarations of emergency——each stemming from the
COVID-19 pandemic——violate the law, specifically Wis. Stat.
§ 323.10's express temporal limitation: "A state of emergency
shall not exceed 60 days unless the state of emergency is
extended by joint resolution of the legislature." Because the
Wisconsin Legislature never extended Governor Evers' declared
state of emergency, it ended on May 11, 2020. Any exercise of
executive power in the name of the COVID-19 pandemic beyond that
date is unlawful unless the people consent, through their
elected representatives in the legislature.
¶47 Governor Evers' interpretation of Wis. Stat. § 323.10as a license to unilaterally decree consecutive states of
emergency based upon the same underlying cause would violate the
structural separation of powers embedded in the Wisconsin
Constitution, rendering the statute an unconstitutional
delegation of legislative power to the executive branch. In
preservation of the people's inherent right to liberty, the
Framers of the United States Constitution devised a system of
separate and distinct powers among the three branches of
government. "To the Framers of the United States Constitution,
the concentration of governmental power presented an
extraordinary threat to individual liberty: 'The accumulation
of all powers, legislative, executive, and judiciary, in the
Morrison v. Olson, 487 U.S. 654, 697
1 (Scalia, J.,
dissenting) (citing Part the First, Article XXX, of the
Massachusetts Constitution of 1780).
1
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same hands, whether of one, a few, or many, . . . may justly be
pronounced the very definition of tyranny.' The Federalist No.
47, at 298 (James Madison) (Clinton Rossiter ed., 1961)."
Gabler v. Crime Victims Rights Bd., 2017 WI 67, ¶4, 376
Wis. 2d 147, 897 N.W.2d 384 (alterations in original). The
Framers were inspired by the wisdom of Montesquieu: "There can
be no liberty where the legislative and executive powers are
united in the same person." The Federalist No. 47, at 302
(quoting Baron de Montesquieu, XI The Spirit of the Laws 216
(John Nourse and Paul Vaillant eds., 1758)). The people of
Wisconsin adopted the same separation of governmental powers in
our state constitution.
¶48 We sustain this separation of powers without
exception, even in a pandemic. Accordingly, this court does not
consider the prudence of particular measures to address the
pandemic; such policy decisions rest with the legislature, not
the judiciary. This case is about who has the power to make
those decisions. The Wisconsin Constitution answers that
question——it is the legislature's duty to make the laws that
govern our lives, the governor's duty to execute them, and the
judiciary's duty to ensure they comport with the constitution.
The legislature enacted a law empowering the governor to respond
to a public health emergency within a period prescribed by the
legislature, after which his authority expires unless extended
by the people's representatives in the legislature. The
majority opinion reaffirms the principle established in
Wisconsin Legislature v. Palm last year: "in the case of a
2
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pandemic, which lasts month after month, the Governor cannot
rely on emergency powers indefinitely."2
I
¶49 While this case may be resolved by applying the plain
language of the statute, the constitutional infirmities of
Governor Evers' interpretation of the law warrant discussion.
An understanding of the structure of our government is a
prerequisite to grasping the constitutional flaws in the
Governor's analysis. "Like its federal counterpart, '[o]ur
state constitution . . . created three branches of government,
each with distinct functions and powers,' and '[t]he separation
of powers doctrine is implicit in this tripartite division.'"
Gabler, 376 Wis. 2d 147, ¶11 (quoted source omitted; alterations
in original). "Three clauses of the Wisconsin Constitution
embody this separation [of powers]: Article IV, Section 1
('[t]he legislative power shall be vested in a senate and
assembly'); Article V, Section 1 ('[t]he executive power shall
be vested in a governor'); and Article VII, Section 2 ('[t]he
judicial power . . . shall be vested in a unified court
system')." Id. (citation omitted).
¶50 Elected officials on whom the people have conferred
powers may not circumvent the constitutional confines of their
authority even if "they believe that more or different power is
necessary." A.L.A. Schechter Poultry Corp. v. United States,
295 U.S. 495, 529 (1935). This fundamental principle underlying
the foundation of our government prevails even in an emergency
2 2020 WI 42, ¶41, 391 Wis. 2d 497, 942 N.W.2d 900.
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because "[e]xtraordinary conditions do not create or enlarge
constitutional power." Id. at 528. Even in a pandemic, the
government "cannot be allowed to obscure the limitations of the
authority to delegate, if our constitutional system is to be
maintained." Id. at 530.
¶51 The Wisconsin Constitution prohibits unlawful
delegations of power among the branches as a bulwark for the
people. "By vesting certain powers exclusively within each of
the three co-equal branches of government, the drafters of the
Wisconsin Constitution recognized the importance of dispersing
governmental power in order to protect individual liberty and
avoid tyranny." League of Women Voters of Wis. v. Evers, 2019
WI 75, ¶31, 387 Wis. 2d 511, 929 N.W.2d 209 (citation omitted).
In specifying the powers of each branch, the constitution
prohibits one branch from assuming the powers of another and
also forbids one branch from ceding its own powers to another.
"The co-ordinate branches of the government . . . should not
abdicate or permit others to infringe upon such powers as are
exclusively committed to them by the Constitution." Rules of
Court Case, 204 Wis. 501, 514, 236 N.W. 717 (1931). "Each
branch's core powers reflect 'zones of authority
constitutionally established for each branch of government upon
which any other branch of government is prohibited from
intruding. As to these areas of authority, . . . any exercise
of authority by another branch of government is
unconstitutional.'" Gabler, 376 Wis. 2d 147, ¶31 (quoting State
4
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ex rel. Fiedler v. Wisconsin Senate, 155 Wis. 2d 94, 100, 454
N.W.2d 770 (1990)) (ellipsis in original; emphasis omitted).
¶52 Because Wisconsin adopted a tripartite division of
powers between the executive, legislature, and judiciary modeled
after the United States Constitution, founding era principles
"inform our understanding of the separation of powers under the
Wisconsin Constitution." Id., ¶11. "The Founders designed a
Constitution to safeguard individual rights and liberty."
Koschkee v. Taylor, 2019 WI 76, ¶56, 387 Wis. 2d 552, 929
N.W.2d 600 (Rebecca Grassl Bradley, concurring). William
Blackstone——who "profoundly influenced" the Founders' conception
of the separation of powers——"defined a tyrannical government as
one in which 'the right both of making and of enforcing the
laws, is vested in one and the same man, or one and the same
body of men,' for 'wherever these two powers are united
together, there can be no public liberty.'" Dep't of Transp. v.
Ass'n of Am. Railroads, 575 U.S. 43, 73 (2015) (Thomas, J.,
concurring) (quoting 1 William Blackstone, Commentaries on the
Laws of England 129, 134, 137-38 (1765)). "The Founders
recognized that maintaining the formal separation of powers was
essential to preserving individual liberty." Koschkee, 387
Wis. 2d 552, ¶51 (Rebecca Grassl Bradley, concurring).
This devotion to the separation of powers is, in part,
what supports our enduring conviction that the Vesting
Clauses are exclusive and that the branch in which a
power is vested may not give it up or otherwise
reallocate it. The Framers were concerned not just
with the starting allocation, but with the "gradual
concentration of the several powers in the same
department." The Federalist No. 51, at 321 (J.
Madison).
5
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Ass'n of Am. Railroads, 575 U.S. at 74 (Thomas, J., concurring).
¶53 The Framers "believed the new federal government's
most dangerous power was the power to enact laws restricting the
people's liberty." Gundy v. United States, 139 S. Ct. 2116,
2134 (2019) (Gorsuch, J., dissenting). With this in mind, the
Framers enshrined the separation of powers in our Constitution
in order to "preserve individual freedom." Olson, 487 U.S. at
727 (Scalia, J., dissenting); see also Ass'n of Am. Railroads,
575 U.S. at 75 (Thomas, J., concurring) ("At the center of the
Framers' dedication to the separation of powers was individual
liberty."). "No political truth is certainly of greater
intrinsic value, or is stamped with the authority of more
enlightened patrons of liberty" than the separation of powers.
The Federalist No. 47, at 301; see also The Federalist No. 51,
at 321-22 (James Madison) (Clinton Rossiter ed., 1961) ("[The]
separate and distinct exercise of the different powers of
government . . . is admitted on all hands to be essential to the
preservation of liberty."). Renouncing England's monarchical
rule, the Framers adopted a structure under which the government
was accountable to the people; power would not go unchecked; and
citizens could "readily identify the source of
legislation . . . affect[ing] their lives." See Ass'n of Am.
Railroads, 575 U.S. at 57 (Alito, J., concurring). Absent this
structural separation of powers, Madison feared there would be
"gradual concentration of the several powers in the same
department." The Federalist No. 51, at 321-22.
6
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¶54 Acknowledging the dangers of accumulated power, the
Framers precluded each branch of government from delegating its
own vested powers. "By careful design," the Framers designed a
framework under which "[w]hen the Government is called upon to
perform a function that requires an exercise of legislative,
executive, or judicial power, only the vested recipient of that
power can perform it." Ass'n of Am. Railroads, 575 U.S. at 61,
68 (Thomas, J., concurring). In other words, given that "each
of these vested powers had a distinct content," the Framers
contemplated that each respective department——and only that
department——could carry out its constitutionally-conferred
powers. See Gundy, 139 S. Ct. at 2133 (Gorsuch, J.,
dissenting).
¶55 This case concerns the legislative function, and the
legislature's authority to transfer it to another branch of
government. "The people bestowed much power on the legislature,
comprised of their representatives whom the people elect to make
the laws." Gabler, 376 Wis. 2d 147, ¶60. Safeguarding
constitutional limitations on the exercise of legislative power
is particularly important in light of its awesome sweep. "When
it came to the legislative power, the framers understood it to
mean the power to adopt generally applicable rules of conduct
governing future actions by private persons——the power to
'prescrib[e] the rules by which the duties and rights of every
citizen are to be regulated,' or the power to 'prescribe general
rules for the government of society.'" Gundy, 139 S. Ct. at
2133 (Gorsuch, J., dissenting) (citing The Federalist No. 78
7
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(Alexander Hamilton) and Fletcher v. Peck, 10 U.S. 87, 136
(1810)). In the Constitution, the "people had vested the power
to prescribe rules limiting their liberties in Congress alone"——
not the executive. Id. (citation omitted). As expressed by
John Locke, whose political philosophy greatly influenced the
Framers' formation of our Republic, "[t]he legislative cannot
transfer the power of making laws to any other hands; for it
being but a delegated power from the people, they who have it
cannot pass it over to others." John Locke, Second Treatise of
Civil Government § 141, at 71 (John Gough ed., 1947) (emphasis
added).
¶56 Because the people gave the legislature its power to
make laws, the legislature alone must exercise it. Our
constitutional structure confers no authority on any branch to
subdelegate any powers the sovereign people themselves delegated
to particular governmental actors. After all, "when the people
have said we will submit to rules, and be governed by laws made
by such men, and in such forms, nobody else can say other men
shall make laws for them." Id. Any laws prescribed beyond the
constitutional lines of authority drawn by the people are
illegitimate: "nor can the people be bound by any laws but such
as are enacted by those whom they have chosen and authorised to
make laws for them." Id.
II
¶57 Although conflict between Governor Evers and the
legislature over the State's COVID-19 pandemic response is often
presented as partisan in nature, this court's review is not.
8
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This court does not referee partisan battles; our duty is to
ensure that each branch of government respects the
constitutional limits of its authority. "[E]nforcing the
separation isn't about protecting institutional prerogative or
governmental turf. It's about respecting the people's sovereign
choice to vest the legislative power in Congress alone. And
it's about safeguarding a structure designed to protect their
liberties, minority rights, fair notice, and the rule of law."
Gundy, 139 S. Ct. at 2135 (Gorsuch, J., dissenting).
¶58 Just like the federal framework, Wisconsin's
Constitution protects against any of the three branches of
government abdicating their constitutionally-vested powers.
"[I]t is . . . fundamental and undeniable that no one of the
three branches of government can effectively delegate any of the
powers which peculiarly and intrinsically belong to that
branch." Rules of Court Case, 204 Wis. at 503. "Core powers,"
as this court has recognized, "are not for sharing." Tetra Tech
EC, Inc. v. DOR, 2018 WI 75, ¶47, 382 Wis. 2d 496, 914
N.W.2d 21. Nevertheless, this court has upheld delegations of
legislative power to the executive, provided there are "adequate
procedural safeguards" in place to limit executive overreach.3
¶59 Relying on the procedural safeguard embodied in Wis.
Stat. § 323.10, which empowers the legislature to revoke the
governor's declared state of emergency by joint resolution,
3Watchmaking Examining Bd. v. Husar, 49 Wis. 2d 526, 536,
182 N.W.2d 257 (1971); Westring v. James, 71 Wis. 2d 462, 468,
238 N.W.2d 695 (1976); Gilbert v. State, Med. Examining Bd., 119
Wis. 2d 168, 186, 349 N.W.2d 68 (1984).
9
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Governor Evers initially argued that "[i]t cannot possibly be
that when the Legislature explicitly has the final say on the
matter, it has given away too much power." Dismissing the
petitioner's concern over the prospect of the governor promptly
declaring a new state of emergency upon the legislature's
revocation of the prior one as "rank speculation," the Governor
himself acknowledged that "such a scenario" "may very well
implicate separation of powers problems." Citing Panzer v.
Doyle,4 Governor Evers further conceded that declaring a new
state of emergency after the legislature revoked the prior one
"may be circumventing the procedural safeguards that insure that
delegated power may be curtailed or reclaimed by future
legislative action" warranting the successive declaration of a
state of emergency "be struck down."
¶60 That was the Governor's argument in November 2020. On
February 4, 2021, the legislature passed a joint resolution
revoking Governor Evers' fifth order declaring a state of
emergency related to the COVID-19 pandemic. That very day, the
Governor declared another one, casting aside the very procedural
safeguard he invoked to validate the legislature's delegation of
emergency management power. In response to the petitioner's
motion for injunctive relief, the Governor asserted a new basis
for his latest emergency order——Wisconsin's potential loss of
emergency FoodShare funds——the preservation of which ostensibly
requires a state of emergency order. Characterizing the
deprivation of food assistance as a disaster distinct from the
4 2004 WI 52, 271 Wis. 2d 295, 680 N.W.2d 666.
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COVID-19 pandemic, the Governor neglects to explain how the
face-covering mandate in his latest order bears any relationship
to food assistance for Wisconsin citizens. When the legislature
passed a bill granting the Governor the power to declare a
public health emergency for the sole purpose of preserving
Wisconsin's entitlement to FoodShare funds as well as other
emergency allotments, the Governor vetoed it.5 The Governor
justified the veto, at least in part, based on the limits the
bill imposed on the ability of his administration to control
public gatherings. The Governor's actions illustrate why this
court "must be assiduous in patrolling the borders between the
branches. This is not just a practical matter of efficient and
effective government. We maintain this separation because it
provides structural protection against depredations on our
liberties." Tetra Tech EC, 382 Wis. 2d 496, ¶45.
III
¶61 Although Governor Evers' violation of Wis. Stat.
§ 323.10's procedural safeguards suffices to strike down his
declarations of successive states of emergency after May 11,
2020, the procedural safeguards test is a judicial invention,
existing in tension with the constitution's clearly demarcated
separation of powers among the branches. Over time, this court
5 Wis. Assem. 2, to Senate Am. 1, to Assem. Am. 1, to Senate
Substitute Am. 1, to Assem B. (Jan. 28, 2021), available at
https://docs.legis.wisconsin.gov/2021/related/amendments/ab1/aa2
_sa1_aa1_ssa1_ab1.
Governor Tony Evers, Governor's Veto Message (Feb. 5,
2021), available at https://docs.legis.wisconsin.gov/2021/
related/journals/assembly/20210205efe1/_70.
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has loosened the constitutional limits on delegating legislative
power to the executive branch. The constitutionally-grounded
doctrine of nondelegation morphed into a doctrine of delegation
within limits drawn by the judiciary, rather than the people.
In this regard, Wisconsin's jurisprudence followed the federal
path. The history is readily traceable.
¶62 In the early days of our Republic, the United States
Supreme Court succinctly articulated the separation of powers:
"the legislature makes, the executive executes, and the
judiciary construes the law." Wayman v. Southard, 23 U.S. 1, 22
(1825). By 1928, the Court discarded these first principles in
favor of the "intelligible principle" test: "If Congress shall
lay down by legislative act an intelligible principle to which
the person or body authorized to [exercise delegated power] is
directed to conform, such legislative action is not a forbidden
delegation of legislative power." J.W. Hampton, Jr., & Co. v.
United States, 276 U.S. 394, 409 (1928). Although this rule
remains in place, see Gundy, 139 S. Ct. at 2123, it is quite
apparent that it supplanted the Constitution's separation of
powers.
¶63 The Constitution "contain[s] a discernible, textually
grounded non-delegation principle that is far removed from the
modern doctrine." Gary Lawson, Delegation and Original Meaning,
88 Va. L. Rev 327, 333 (2002). "[T]he Constitution does not
speak of 'intelligible principles.' Rather, it speaks in much
simpler terms: 'All legislative Powers herein granted shall be
vested in a Congress.'" Whitman v. American Trucking Ass'ns,
12
No. 2020AP1718-OA.rgb
Inc., 531 U.S. 457, 487 (2001) (Thomas, J., concurring). As
some members of the current Court have recently recognized,
"[i]f Congress could pass off its legislative power to the
executive branch, the vesting clauses and indeed the entire
structure of the Constitution, would make no sense." Gundy, 139
S. Ct. at 2134-35 (Gorsuch, J., dissenting). If Congress could
permissibly delegate its vested powers, "legislation would risk
becoming nothing more than the will of the current President."
Id. at 2135. Departures from the nondelegation doctrine reflect
each branch's willingness to "abandon openly a substantial
portion of the foundation of American representative
government." Lawson, supra, at 332.
¶64 In the early years of Wisconsin's statehood, this
court understood that the three branches of government could not
delegate their vested powers, imposing substantive limitations
on the legislature's assignment of authority to the executive to
carry out the legislature's policies. In Dowling, this court
declared "a law must be complete, in all its terms and
provisions, when it leaves the legislative branch of the
government, and nothing must be left to the judgment of the
electors or other appointee or delegate of the legislature."
Dowling v. Lancashire Ins. Co., 92 Wis. 63, 65 N.W. 738, 741
(1896) (emphasis added). However, in the wake of the
Progressive era, this court began to uproot substantive limits
on the legislature's delegation of its constitutionally-
conferred powers, thereby damaging the "foundation of American
13
No. 2020AP1718-OA.rgb
representative government" that is the separation of powers.
Lawson, supra, at 332.
¶65 As is often the justification for casting aside
constitutional principles, this court abandoned the
nondelegation doctrine in the name of "necessity." In 1928,
conterminously with the United States Supreme Court, this court
explained that "courts, Legislatures, and executives, as well as
students of the law, agree, . . . that there is an overpowering
necessity for a modification of the doctrine of separation and
non-delegation of powers of government." State v. Whitman, 196
Wis. 472, 220 N.W. 929, 941 (1928). Eviscerating the Wisconsin
Constitution's separation of powers, the Whitman court held that
the legislature "may delegate" to agencies "the authority to
exercise such legislative power as is necessary to carry into
effect the general legislative purpose." Id. Gone was any
substantive limit on the legislature's delegation of authority;
the legislature could now delegate its legislative powers so
long as the court agreed it was necessary to carry out the
legislative purpose. Of course, neither branch sought nor
obtained the people's consent to this brazen rewriting of the
constitution.
¶66 Whitman ushered in a new era for this court's ever-
evolving abandonment of non-delegation principles. Forty years
thereafter, this court approved any delegating statute merely
"if the purpose of the delegating statute is ascertainable and
there are procedural safeguards to insure that the board or
agency acts within that legislative purpose." Watchmaking
14
No. 2020AP1718-OA.rgb
Examining Bd. v. Husar, 49 Wis. 2d 526, 536, 182 N.W.2d 257(1971). The court reiterated this position five years later,
upholding "broad grants of legislative powers . . . where there
are procedural and judicial safeguards against arbitrary,
unreasonable, or oppressive conduct of the agency." Westring v.
James, 71 Wis. 2d 462, 468, 238 N.W.2d 695 (1976). Over the
ensuing decades, the court fortified its deviation from first
principles, continuing to uphold "broad grants of legislative
powers." In Gilbert, this court acknowledged that throughout
the "evolution of the delegation of legislative power"
effectuated by the judiciary, it has "take[n] a more liberal
attitude toward delegations of legislative authority." Gilbert
v. State, Med. Examining Bd., 119 Wis. 2d 168, 186, 349
N.W.2d 68 (1984). More accurately, the constitution's
substantive limitations on delegating authority are all but
dead. In their place survives judicial complacence with
transfers of legislative power, "[s]o long as there are adequate
procedural safeguards" in place to limit executive overreach.
Id.¶67 Proposals to reinvigorate the nondelegation doctrine
are often met with warnings about the adverse impact on the
government's ability to operate efficiently. Governmental
efficiency can never be allowed to trump the people's liberty.
As Madison noted, "the separate and distinct exercise of
government . . . [is] essential to the preservation of liberty."
The Federalist No. 51, at 321 (emphasis added). As reflected in
Madison's enduring words, and consistent with the plain text and
15
No. 2020AP1718-OA.rgb
original meaning of the United States and Wisconsin
Constitutions, the legislature may not delegate its vested
powers to the executive.
¶68 Reviving the nondelegation doctrine would restore the
original understanding of the constitutional grants of
authority; they "'are exclusive,' which means 'only the vested
recipient of that power can perform it.'" Koschkee, 387
Wis. 2d 552, ¶47 (Rebecca Grassl Bradley, concurring) (citing
Ass'n of Am. Railroads, 575 U.S. at 67 (Thomas, J.,
concurring)). Following the Framers' model, the Wisconsin
Constitution ensures this "separation of powers 'operate[s] in a
general way to confine legislative powers to the legislature.'"
Id. (citation omitted) (emphasis added). "[E]ver vigilant in
averting the accumulation of power by one body——a grave threat
to liberty——the people devised a diffusion of governmental
powers. These powers may not be claimed by another branch."
Gabler, 376 Wis. 2d 147, ¶60.
IV
¶69 In this case, the court appropriately applies the
plain language of the statute to overturn executive overreach.
Governor Evers' interpretation of his emergency management
powers would render Wis. Stat. § 323.10 unconstitutional.
According to the Governor, the legislature gave the executive
the unilateral authority to declare successive states of
emergency, based upon the same underlying cause, with no
prescribed end date, and without the approval (much less the
input) of the legislature. During a declared state of
16
No. 2020AP1718-OA.rgb
emergency, Wis. Stat. § 323.12 gives the Governor the
extraordinary power to "[i]ssue such orders as he [] deems
necessary for the security of persons and property."
§ 323.12(4)(b). Under the Governor's reading, if the Governor
wills it, then so it shall be——for as long as the Governor alone
decrees a public health emergency exists. Such a grant of
plenary legislative power could not survive even cursory
constitutional scrutiny.
¶70 The people of Wisconsin gave the power to legislate to
the legislature alone. Accordingly, "a law must be complete, in
all its terms and provisions, when it leaves the legislative
branch or the government, and nothing must be left to the
judgment of the electors or other appointee or delegate of the
legislature." Dowling, 92 Wis. at 65. Governor Evers'
construction of Wis. Stat. § 323.10 would leave the exercise of
extraordinary power entirely to the judgment of the executive,
unlimited in duration. As the Governor would have it, so long
as he alone thinks the cause of a public health emergency
persists, he retains the unchecked power to keep Wisconsin in a
perpetual state of emergency, leaving the individual liberties
preserved by the people at the birth of our nation and at the
founding of our state to the whim of a single executive.
"Freedom of men under government," as John Locke wrote, "is to
have a standing rule to live by, common to every one of that
society, and made by the legislative power erected in
it . . . and not subject to the inconstant, uncertain, unknown,
arbitrary will of another man." Ass'n of Am. Railroads, 575
17
No. 2020AP1718-OA.rgb
U.S. at 72-73 (Thomas, J., concurring) (quoting John Locke,
Second Treatise of Civil Government § 22, at 13 (John Gough ed.,
1947)). If the legislature had actually abdicated its vested
powers to the executive, as the Governor would have it, the
people of Wisconsin would be subject to the arbitrary will of a
single man. The Wisconsin Constitution does not countenance
such a consolidation of extraordinary power.
¶71 Under Governor Evers' interpretation, the
constitutional separation of powers between the executive and
legislative branches would collapse for the duration of any
public health emergency. Every 60 days, so long as the
underlying cause of the emergency persists, the executive could
declare another state of emergency, granting the Governor the
extraordinary powers delineated in Wis. Stat. § 323.12——
indefinitely. Such unilateral, unchecked power was anathema to
the framers of our constitutions.
By separating the lawmaking and law enforcement
functions, the framers sought to thwart the ability of
an individual or group to exercise arbitrary or
absolute power. And by restricting lawmaking to one
branch and forcing any legislation to endure
bicameralism and presentment, the framers sought to
make the task of lawmaking more arduous still.
United States v. Nichols, 784 F.3d 666, 670 (10th Cir. 2015)
(Gorsuch, J., dissenting). While some may find the limitations
on the Governor's power frustrating, particularly in the midst
of a pandemic, those limitations exist to protect our liberty.
"Admittedly, the legislative process can be an arduous one. But
that's no bug in the constitutional design: it is the very
point of the design." Gutierrez-Brizuela v. Lynch, 834 F.3d
18No. 2020AP1718-OA.rgb
1142, 1151 (10th Cir. 2016) (Gorsuch, J., concurring). Escaping
the imposition of a single ruler's dictates on the people
impelled the founding fathers to risk their lives, their
fortunes, and their sacred honor in 1776.6
* * *
¶72 "In America THE LAW IS KING! For as in absolute
governments the king is law, so in free countries the law ought
to be king; and there ought to be no other." Thomas Paine,
Common Sense (1776). In Wisconsin, the legislature empowered
the governor to respond to a public health emergency.
Statutorily, those powers "shall not exceed 60 days, unless the
state of emergency is extended by joint resolution of the
legislature." Wis. Stat. § 323.10. In response to the COVID-19
pandemic, Governor Evers declared a state of emergency on March
12, 2020. The legislature never extended it. Accordingly, any
orders issued by the Governor more than 60 days thereafter are
unlawful and void. While a pandemic will not follow the laws of
men, the Governor must. I respectfully concur.
¶73 I am authorized to state that Chief Justice PATIENCE
DRAKE ROGGENSACK joins this concurrence.
6See Declaration of Independence (U.S. 1776) ("And for the
support of this Declaration, with a firm reliance on the
protection of divine Providence, we mutually pledge to each
other our Lives, our Fortunes and our sacred Honor.").
19
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¶74 ANN WALSH BRADLEY, J. (dissenting). This is no run-
of-the-mill case. 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.1 Unfortunately, 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.
¶75 First, the majority errs by granting taxpayer standing
to Fabick on a conjured justification neither briefed nor argued
by any party. In essence, the product of this new theory
results in a standard so low that all that is needed for
taxpayer standing in this court is a song and a whistle with an
ability to produce a melody appealing to at least four justices.
¶76 Such an institutional injury alone should be
sufficient to cause the majority to pause. Yet, in support of
its new theory it proceeds to cause further institutional damage
by sub silentio overruling more than a century of taxpayer
standing cases.
¶77 Second, the majority errs by purporting to engage in a
straightforward statutory analysis. Yet, it omits any analysis
of an essential word in Wis. Stat. § 323.02(16) that is outcome
determinative. Left unanalyzed is the statutory term
1The majority's entire discussion of the consequence is
tucked away in a one sentence footnote towards the end of the
opinion. See majority op., ¶43 n.19.
1
No. 2020AP1718-OA.awb
"occurrence," which when included in the analysis, proves to
undermine the majority's conclusion and mandates a contrary
result.
¶78 In a final flourish of judicial immodesty, the
majority goes beyond the relief requested and declares Executive
Order #105 unlawful with scant analysis and without candid
justification. Obscuring the fact that Fabick did not move for
the relief it grants, the majority reaches out and strikes down
Order #105 even though that order is not properly before the
court.
¶79 Contrary to the majority's conclusions, I determine
that because Fabick and the State of Wisconsin suffer no
pecuniary loss whatsoever, Fabick fails to meet the condition
necessary for asserting taxpayer standing. Without taxpayer
standing, this case simply can no longer be maintained.
¶80 Further, I conclude that Executive Orders #82 and #90
are premised on statutory occurrences that are distinct from
each other and from that relied upon for Executive Order #72.
Therefore, they are permissible pursuant to the Governor's
authority under Wis. Stat. § 323.10.
¶81 Finally, I would deny Fabick's motion to temporarily
enjoin Order #105. In addition to Order #105 not being properly
before the court and Fabick's lack of standing to challenge it,
the majority's conclusion regarding Order #105 finds no textual
support.
¶82 Accordingly, I respectfully dissent.
2
No. 2020AP1718-OA.awb
I
¶83 Since its emergence in late 2019, COVID-19 has quickly
and devastatingly enveloped the globe, and Wisconsin has been
ravaged with high case counts and tragic deaths. As of this
writing, over 27,000 Wisconsinites have been hospitalized and
over 6,500 have died.2 The emergencies presented by the arrival
and spread of COVID-19 have spurred the Governor to issue
several executive orders declaring various states of emergency.
¶84 On March 12, 2020, recognizing the danger of the
spread of COVID-19 around the world and seeing a need "to
prepare for the impacts [the virus] may have on the state[,]"
Governor Tony Evers issued Executive Order #72. This order,
among other things, declared a public health emergency in the
state and designated the Department of Health Services (DHS) as
the lead agency to respond.
¶85 Neither the legislature nor the Governor revoked this
order prior to its expiration 60 days later, on May 11, 2020.3
Upon the expiration of Order #72, the Governor declared no state
of emergency for the next 79 days despite the continuing
presence of COVID-19 in Wisconsin.
¶86 The Governor waited until July 30, 2020, and then
declared a new state of emergency, in the form of Executive
Wisconsin
2 Department of Health Services, COVID-19:
Wisconsin Summary Data, https://www.dhs.wisconsin.gov/covid-
19/data.htm#summary (last visited Mar. 29, 2021).
See Wis. Stat. § 323.10 ("The executive order may be
3
revoked at the discretion of either the governor by executive
order or the legislature by joint resolution.").
3
No. 2020AP1718-OA.awb
Order #82, in response to a "new and concerning spike in
infections." Again, neither the Governor nor the legislature
revoked Order #82, and it expired on September 28, 2020.
¶87 However, six days before Order #82 was to expire, the
Governor issued Executive Order #90 declaring a new public
health emergency, this time in response to the significant
increase in the spread of COVID-19 due to the beginning of the
K-12 and collegiate school years. Once again, the legislature
did not revoke Order #90.
¶88 With the legislature declining to act, and in so doing
tacitly acquiescing to the Governor's orders,4 Fabick, a single
Wisconsin resident, filed suit as a taxpayer. He brought his
suit as an original action before this court, arguing that the
Governor lacks the statutory authority to declare successive
states of emergency "arising from the same public health
emergency." He acknowledges, however, that in certain
circumstances, the Governor can make such a declaration for a
different COVID-19 related public health emergency. With regard
to standing, Fabick contended that he has standing to maintain
this action as a taxpayer because the Governor utilized
government funds in drafting, promoting, and enforcing Orders
#82 and #90.
Curiously, although it has the authority to act to end a
4
state of emergency at any time, see Wis. Stat. § 323.10, the
legislature chose not to do so with either Order #82 or Order
#90 and instead filed an amicus brief in this court in support
of Fabick's position.
4
No. 2020AP1718-OA.awb
II
¶89 Right off the bat, the majority makes a fundamental
error, allowing Fabick to maintain this action despite his lack
of standing. In doing so, it sub silentio overrules over a
century of precedent requiring that there be some pecuniary loss
in order for taxpayer standing to be established.
¶90 Why is standing so important? In answering that
question, a review of the "cases and controversies" clause of
the United States Constitution is informative. See U.S. Const.
art. III, § 2. Although not binding on state court
jurisdiction, the United States Supreme Court has generally
interpreted this provision to define the proper role of the
judiciary as limited to deciding only "cases and controversies."5
¶91 As this court has done, the United States Supreme
Court has emphasized that courts are not to hand out advisory
opinions on some future hypothetical case. Chafin v. Chafin,
568 U.S. 165, 172 (2013); State v. Grandberry, 2018 WI 29, ¶31
n.20, 380 Wis. 2d 541, 910 N.W.2d 214. The cases and
controversies must be actual.
¶92 Likewise, Article III, Section 2 circumscribes who can
maintain a court action. Courts are not to entertain cases from
parties who do not have a legally recognized interest in the
The Supreme Court has observed that "[n]o principle is
5
more fundamental to the judiciary's proper role in our system of
government than the constitutional limitation of federal-court
jurisdiction to actual cases or controversies." Raines v. Byrd,
521 U.S. 811, 818 (1997). The case-or-controversy requirement
of Article III requires plaintiffs to establish their standing
to sue. Id. (citing Lujan v. Defenders of Wildlife, 504 U.S.
555, 561 (1992)).
5
No. 2020AP1718-OA.awb
case. See DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342
(2006). That legally recognized interest is called "standing."
Thus, standing is important both in federal court and Wisconsin
courts because it reins in unbridled attempts to go beyond the
circumscribed boundaries that define the proper role of courts.
¶93 Fabick seeks standing here as a taxpayer. He claims
that he has standing simply because government employees thought
about and implemented Orders #82 and #90 on government time.
¶94 Taxpayer standing is broad, but it is not limitless.
See S.D. Realty Co. v. Sewerage Comm'n of City of Milwaukee, 15
Wis. 2d 15, 21-22, 112 N.W.2d 177 (1961). It is well settled in
Wisconsin that "[i]n order to maintain a taxpayer's action, it
must be alleged that the complaining taxpayer and taxpayers as a
class have sustained, or will sustain, some pecuniary
loss . . . ." Id. at 21. Such a principle is not new.
¶95 The lineage of the "pecuniary loss" requirement can be
traced back over a century. Acknowledging this settled
requirement for taxpayer standing, the S.D. Realty court cited
McClutchey v. Milwaukee County, 239 Wis. 139, 140, 300 N.W. 224,
(1941). S.D. Realty Co., 15 Wis. 2d at 21-22. McClutchey, in
turn, cites a long list of cases dating back to 1914. See Kasik
v. Janssen, 158 Wis. 606, 609, 149 N.W. 398 (1914) ("There is
therefore no ground for the maintenance of a taxpayer's suit.
Equity does not interfere with the rules or orders of an
administrative officer at the suit of a taxpayer, unless the
6
No. 2020AP1718-OA.awb
taxpayer and his class have sustained or will sustain some
pecuniary loss therefrom.").6
¶96 Fabick's argument contains no limiting principle at
all and renders the doctrine of standing purely illusory. Under
Fabick's rationale, any person could challenge any governmental
action. This is not the law, nor should it be. For standing
requirements to have any meaning, Fabick's standing must be
denied.
¶97 Ignoring our long-established case law, the majority,
however, determines that Fabick has standing to maintain his
claim as a taxpayer despite his failure to establish any
pecuniary loss whatsoever either to himself or to taxpayers as a
whole. Majority op., ¶11. The majority arrives at its
erroneous determination that Fabick has standing by conjuring
its own justification, neither argued nor briefed by any party.
Namely, it relies on state expenditures of taxpayer funds for
deployment of the National Guard pursuant to the subject
emergency declarations. Id. However, recent events
significantly undermine the majority's summoned rationale.
¶98 On January 21, 2021, the new presidential
administration issued an executive order instituting full
federal reimbursement to states for National Guard expenses due
6 See also Berger v. City of Superior, 166 Wis. 477, 166
N.W. 36 (1918); Murphy v. Paull, 192 Wis. 93, 212 N.W. 402(1927); Milwaukee Horse & Cow Comm'n Co. v. Hill, 207 Wis. 420,
241 N.W. 364 (1932); Stuart v. City of Neenah, 215 Wis. 546, 255
N.W. 142 (1934).
7
No. 2020AP1718-OA.awb
to COVID-19 going forward.7 Then on February 2, 2021, it
extended such reimbursement to states for 100 percent of
expenses incurred in mobilizing the National Guard to address
COVID-19, both going forward and retroactively.8
¶99 Full retroactive reimbursement makes the majority's
reliance on state-incurred National Guard expenses to establish
Fabick's taxpayer standing untenable. Indeed, with this federal
policy change, no state funds at all will be expended for
National Guard deployment. None. Zero. Thus, the majority
cannot persuasively rely on such an expenditure to establish
Fabick's standing.
¶100 The majority recognizes this change in federal policy,
but does not take it at face value, instead determining that
"[t]he imminent threat of unreimbursed costs, past and future,
is sufficient to confer taxpayer standing on Fabick . . . ."
Majority op., ¶11 n.5. It cites Warden v. Hart, 162 Wis. 495,
497, 156 N.W. 466 (1916), for the proposition that a taxpayer
7Memorandum to Extend Federal Support to Governors' Use of
the National Guard to Respond to COVID-19 and to Increase
Reimbursement and Other Assistance Provided to States,
https://www.whitehouse.gov/briefing-room/presidential-
actions/2021/01/21/extend-federal-support-to-governors-use-of-
national-guard-to-respond-to-covid-19-and-to-increase-
reimbursement-and-other-assistance-provided-to-states/
(Jan. 21, 2021).
8FACT SHEET: President Biden Announces Increased Vaccine
Supply, Initial Launch of the Federal Retail Pharmacy Program,
and Expansion of FEMA Reimbursement to States,
https://www.whitehouse.gov/briefing-room/statements-
releases/2021/02/02/fact-sheet-president-biden-announces-
increased-vaccine-supply-initial-launch-of-the-federal-retail-
pharmacy-program-and-expansion-of-fema-reimbursement-to-states/
(Feb. 2, 2021).
8
No. 2020AP1718-OA.awb
has standing when the taxpayer is merely "threatened with" a
pecuniary loss.
¶101 But Warden, the only taxpayer standing case the
majority cites in support, cannot be stretched this far. In
Warden, the plaintiff sought to enjoin the excavation of a
public street that had been planned and permitted. Id. The
threat of injury was real and immediate.
¶102 In this case, however, there is no such real and
immediate threat of pecuniary loss. On what is this "imminent
threat" based, other than the majority's whimsical musing that
the federal government may not do what it has said it will do?
Such rank speculation underscores the majority's tenuous search
for a viable theory upon which to justify the continuation of
this action. Speculation of this ilk cannot, however, create an
actual case or controversy and surely does not support Fabick's
standing to maintain this case.
¶103 A party may have standing at the beginning of a case
and then lose it as the case progresses. See, e.g., Craig v.
Boren, 429 U.S. 190, 192 (1976); Kurtz v. Clark, 290 P.3d 779,
784 (Okla. Civ. App. 2012). The S.D. Realty court compared
taxpayer standing to shareholder standing: "[A] taxpayer does
have a financial interest in public funds which is akin to that
of a stockholder in a private corporation." S.D. Realty Co., 15
Wis. 2d at 22. And Northern Air Services, Inc. v. Link, 2011 WI
75, ¶83, 336 Wis. 2d 1, 804 N.W.2d 458, makes clear that if you
no longer own shares of stock, you no longer have standing to
9
No. 2020AP1718-OA.awb
maintain a shareholder action.9 The same principle should apply
here.
¶104 Accordingly, even assuming Fabick had standing to
bring this action in the first instance, he certainly has lost
it due to the new policy of 100 percent federal reimbursement
for states' National Guard expenses. In its quest to get its
teeth into this dispute, the majority ignores this fundamental
deficiency in allowing Fabick's case to proceed.
¶105 The effect of the majority's standing analysis is not
limited only to this and future taxpayer cases, but it
necessarily affects the vitality of our past precedents.
Indeed, what of the "pecuniary loss" requirement to which we
have adhered for over a century? Without saying a word about
it, the majority appears to overrule a multitude of cases10 and
ignores our well-established precedent which requires a taxpayer
to establish some sort of pecuniary loss to maintain standing.
Because Fabick is unable to meet this requirement, I conclude
that he lacks standing to maintain this action.
9 See N. Air Servs., Inc. v. Link, 2011 WI 75, ¶83, 336 Wis.
2d 1, 804 N.W.2d 458 ("On June 30, 2009, when Jay surrendered
his shares in Link Snacks under the Buy-Sell Agreement, he was
no longer a 'shareholder' in Link Snacks, as that term is
defined by the Wisconsin Business Corporation Law.
Consequently, Jay no longer has standing to maintain an
oppression claim under Wis. Stat. § 180.1430(2)(b).").
10 See, e.g., Kasik v. Janssen, 158 Wis. 606, 149 N.W. 398(1914); Berger, 166 Wis. 477; Murphy, 192 Wis. 93; Milwaukee
Horse & Cow Comm'n Co., 207 Wis. 420, Stuart, 215 Wis. 546;
McClutchey v. Milwaukee Cnty., 239 Wis. 139, 300 N.W. 224(1941); S.D. Realty Co. v. Sewerage Comm'n of City of Milwaukee,
15 Wis. 2d 15, 112 N.W.2d 177 (1961).
10
No. 2020AP1718-OA.awb
III
¶106 The majority also errs in its interpretation of the
plain language of the relevant statutes, Wis. Stat.
§§ 323.02(16) and 323.10. When properly focused on the actual
words of these statutes, the plain language does not support the
majority's interpretation. Rather, a plain language analysis
establishes that emergency declarations are permissible when,
like the orders at issue here, they are based on separate
statutory "occurrences," even if those occurrences share the
same underlying cause.
¶107 The majority misses the mark when it fails to
recognize that the key word for analysis in this case lies in
the statutory definition of a "public health emergency" provided
by Wis. Stat. § 323.02(16). That key word is "occurrence."
Instead, the majority puts on blinders and does not engage with
the term at all.
¶108 Legally speaking, this case presents a straightforward
issue of statutory interpretation. "Statutory language is given
its common, ordinary, and accepted meaning, except that
technical or specially-defined words or phrases are given their
technical or special definitional meaning." State ex rel. Kalal
v. Circuit Court for Dane Cnty., 2004 WI 58, ¶45, 271
Wis. 2d 633, 681 N.W.2d 110. We interpret statutory language
"in the context in which it is used; not in isolation but as
part of a whole; in relation to the language of surrounding or
closely-related statutes; and reasonably, to avoid absurd or
unreasonable results." Id., ¶46.
11
No. 2020AP1718-OA.awb
¶109 There are two statutes relevant to the analysis, Wis.
Stat. §§ 323.02(16) and 323.10. Section 323.10 sets forth the
Governor's authority to declare a state of emergency. It
provides in relevant part:
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. . . . A state of emergency shall not exceed
60 days, unless the state of emergency is extended by
joint resolution of the legislature. . . . The
executive order may be revoked at the discretion of
either the governor by executive order or the
legislature by joint resolution.
¶110 As a starting point, the emergency declarations at
issue in this case arise from a "public health emergency," as
the majority agrees. Majority op., ¶24. Thus, my focus zeroes
in on that term as we examine: what is a public health
emergency?
¶111 This is where Wis. Stat. § 323.02(16) joins the
equation. Indeed, "public health emergency" is a defined term
pursuant to that statute. It means "the occurrence or imminent
threat of an illness or health condition that . . . [i]s
believed to be caused by . . . a novel or previously controlled
or eradicated biological agent." § 323.02(16). The statute
further defines a "public health emergency" as requiring that
the occurrence or threat poses a high probability of either "[a]
large number of deaths or serious or long-term disabilities
among humans" or "[a] high probability of widespread exposure to
a biological, chemical, or radiological agent that creates a
12
No. 2020AP1718-OA.awb
significant risk of substantial future harm to a large number of
people." Id.
¶112 Without further interpretation, the definition of
public health emergency by itself does not resolve our inquiry.
This statutory definition of "public health emergency" turns on
whether there is an "occurrence" or a "threat" of an illness or
health condition that fulfills the statutory criteria. Thus, a
"public health emergency" may be declared either upon the
occurrence or upon the imminent threat of an illness or health
condition.
¶113 I focus on the term "occurrence" rather than "threat"
because Orders #82 and #90 were issued in response to
"occurrences" that have already taken place. The new spike in
infections drove Order #82 and Order #90 was issued because of
the significant increase in the spread of the virus occasioned
by the beginning of the school year.11
11The majority mischaracterizes this dissent as "ignor[ing]
that a 'public health emergency' may be declared upon either
'the occurrence or imminent threat of an illness or health
condition.'" Majority op., ¶23 n.7. As explained above, I
focus on the term "occurrence" rather than "threat" simply
because Orders #82 and #90 were issued in response to
"occurrences" that have already taken place. If anything, the
inclusion of "threat" in addition to "occurrence" broadens the
circumstances under which a public health emergency may be
declared.
Further, the majority decries the fact that "occurrence"
does not appear in Wis. Stat. § 323.10. Id. True enough. But
it does appear in Wis. Stat. § 323.02(16), and there is a
straight line between the two statutes. Section 323.10 includes
the phrase "public health emergency," which is in turn defined
by § 323.02(16) to include an "occurrence." The connection is
not hard to follow.
13
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¶114 In the absence of any statutory definition, and
without any case law interpreting the term "occurrence" in the
context of Wis. Stat. § 323.02(16), our task is to determine its
common, ordinary, and accepted meaning. Kalal, 271 Wis. 2d 633,
¶45. A dictionary may aid us in our interpretation, so that is
where I begin.12
¶115 A commonly accepted dictionary defines "occur" as "to
take place" or "come about."13 We need not look far to find an
application of a highly similar definition in our case law, as
this court has previously stated that the "ordinary and common
meaning of 'occurrence' is 'something that takes place;
something that happens unexpectedly and without design.'"
Kremers-Urban Co. v. Am. Emp.'s Ins. Co., 119 Wis. 2d 722, 741,
351 N.W.2d 156 (1984); see Kalal, 271 Wis. 2d 633, ¶45
(explaining that statutory language is given "its common,
ordinary, and accepted meaning"). Contrary to the majority's
overly simplistic view, "occurrence" is a very broad term.
Nothing about this definition leads to the conclusion that an
"occurrence" coincides with the first appearance of a disease
only.
¶116 Applying our established definition of "occurrence" to
Orders #82 and #90, it is apparent that each is based on a new
See State v. Sample, 215 Wis. 2d 487, 499, 573 N.W.2d 18712
(1998) ("For purposes of statutory interpretation or
construction, the common and approved usage of words may be
established by consulting dictionary definitions.").
Occur, American Heritage Dictionary of the English
13
Language, https://www.ahdictionary.com/word/search.html?q=occur
(last visited Mar. 29, 2021).
14
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set of on-the-ground facts, with each new set of facts posing a
high probability of either "[a] large number of deaths or
serious or long-term disabilities among humans" or "[a] high
probability of widespread exposure to a biological . . . agent
that creates a significant risk of substantial future harm to a
large number of people." See Wis. Stat. § 323.02(16). Thus,
the orders were issued in response to separate occurrences and
are permissible under the plain language of §§ 323.02(16)
and 323.10.
¶117 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. The "new and concerning spike
in infections" is certainly "something that takes place" that
poses a high probability of widespread transmission risking
future harm to a large number of people, i.e. an occurrence
15
No. 2020AP1718-OA.awb
separate and apart from the need to prepare for COVID-19's
impact that drove Order #72.
¶119 Likewise, Order #90 was issued in response to a
different specific and discrete occurrence. It was premised on
facts indicating that COVID-19's "exponential growth is being
driven by new factors not present before, primarily the
significant increase in spread due to the beginning of the K-12
and collegiate school years, which all began on or about
September 1, and the unprecedented number of infections among
18-24 year-olds . . . ." Again, the increase in spread due to
the beginning of the school year is "something that takes place"
that poses a high probability of widespread exposure that
threatens broad swaths of Wisconsinites, i.e. an occurrence
separate and apart from the occurrences cited in Orders #72 and
#82.
¶120 While COVID-19 may be the underlying cause of the
conditions that gave rise to Orders #72, #82, and #90, the
disease itself is not the statutory "occurrence" on which the
orders are premised. In other words, the "occurrence"
underlying each subject order is not the pandemic itself, but
conditions that the pandemic has caused.
¶121 At oral argument, Fabick acknowledged the correctness
of such a proposition, undercutting his argument that there
cannot be another public health emergency declared due to the
COVID-19 pandemic. In response to a question from the court
regarding whether hospitals being overrun could constitute a
separate occurrence under the statute, Fabick's counsel
16
No. 2020AP1718-OA.awb
responded: "The Governor could issue a separate order that is
targeted to the specific problem."14 That is exactly what the
Governor has done here.
¶122 Wisconsin Stat. § 323.10 prohibits the Governor from
extending a state of emergency past 60 days absent the approval
of the legislature. By issuing Orders #82 and #90, the Governor
has not extended a pre-existing state of emergency, but instead
has issued new emergency declarations based on new underlying
occurrences. Accordingly, I determine that under the plain
language of the statutes Orders #82 and #90 are permissible
exercises of the authority granted to the Governor in § 323.10.15
14 In more detail, the exchange proceeded as follows:
The Court: Let's just say, hypothetically, all of our
hospitals are overrun . . . and we get to a point
where there needs to be action taken, it's your
position that because one emergency was issued, one
state of emergency, based on an ongoing public health
emergency or public health crisis, the Governor could
do nothing in terms of declaring a state of emergency
because the hospitals have been overrun, which could
be another occurrence, correct?
Fabick's counsel: Well, if we're dealing with a
targeted scenario, short supply of hospital equipment,
the Governor could issue a separate order that is
targeted to the specific problem.
15Because I determine that Orders #82 and #90 are
permissible pursuant to Wis. Stat. § 323.10, I must reach the
issue that the majority does not, i.e. the argument that
§ 323.10 constitutes an unconstitutional delegation of
legislative power to the executive. This argument can be
quickly dispatched.
17
No. 2020AP1718-OA.awb
¶123 This interpretation is buttressed by the fact that an
alternative "one and done" statutory interpretation, which in
the main is advanced by Fabick, puts forth a position that leads
to absurd or unreasonable results contrary to both common sense
and recent practice. See Kalal, 271 Wis. 2d 633, ¶46
(explaining that we must interpret statutes "reasonably, to
avoid absurd or unreasonable results").16
This court has recently acknowledged that "[c]onstitutional
law has generally permitted the Governor to respond to
emergencies without the need for legislative approval."
Wisconsin Legislature v. Palm, 2020 WI 42, ¶41, 391 Wis. 2d 497,
942 N.W.2d 900. Such a clear statement from this court
indicates that emergency response is at the very least a shared
power between the legislative and executive.
In examining a nondelegation argument in the context of a
shared power, this court "normally review[s] both the nature of
delegated power and the presence of adequate procedural
safeguards, giving less emphasis to the former when the latter
is present." Panzer v. Doyle, 2004 WI 52, ¶55, 271 Wis. 2d 295,
680 N.W.2d 666.
Here, there is a safeguard in place in the form of the
legislature's ability to revoke any state of emergency the
Governor may declare. See Wis. Stat. § 323.10 ("The executive
order may be revoked at the discretion of . . . the legislature
by joint resolution.") Indeed, it must be asked how there could
be an impermissible delegation of power when the legislature
retains full authority to revoke any state of emergency the
governor may issue.
The majority mischaracterizes this dissent as arguing
16
that the assertion "that a governor's power to act on an
emergency basis would be temporary and terminable by the
legislature" creates an absurd result. Majority op., ¶36 n.16.
This contention by the majority is simply a straw man set up
only to be inexorably torn down. Of course, it is not the
statutory scheme that is absurd, but the majority's
interpretation of limiting the governor to one emergency
declaration per underlying cause.
18
No. 2020AP1718-OA.awb
¶124 As an illustration of the absurdity of this
alternative interpretation, consider an example taken from the
Governor's brief. Imagine heavy rains leading to a flood that
two months later causes a dam to break. If the governor
declared a state of emergency because of the initial flooding,
he could not issue another for the new flood caused by the dam
failure because it shares an underlying cause with the previous
state of emergency. This simply could not be the legislature's
intent.
¶125 Such an interpretation would cause the Governor to
engage in a perverse calculation regarding when to use an
emergency declaration——should he issue it now or save it and
wait to see how bad things get? This undermines the very
concept of an emergency: something is happening right now that
demands swift action without delay.
¶126 To further illustrate that this alternative
interpretation is unreasonable, I look to recent practice.
Indeed, from the Fall of 2013 through the Winter of 2014,
Governor Walker issued seven executive orders related to propane
shortages and the resulting energy emergency.17 Then again from
the Fall of 2016 through the Winter of 2017, Governor Walker
declared two successive states of emergency to waive load limits
for petroleum transportation due to a pipeline shutdown and long
Office of the Wisconsin Governor, Executive Order No. 120
17
(Oct. 25, 2013); No. 121 (Nov. 7, 2013), No. 122 (Nov. 15,
2013); No. 124 (Nov. 27, 2013); No. 128 (Dec. 23, 2013); No. 130
(Jan 25, 2014); No. 132 (Apr. 17, 2014),
https://docs.legis.wisconsin.gov/code/executive_orders/2011_scot
t_walker/.
19
No. 2020AP1718-OA.awb
wait times at supply terminals.18 Fabick acknowledged at oral
argument that, despite his purported concern for a governor
overstepping his statutory authority, he did not challenge these
emergency declarations. Perhaps they went unchallenged because,
as Fabick has implicitly acknowledged, it makes no sense to
hamstring a governor's ability to meet the emergencies faced by
the people of Wisconsin by limiting emergency power to only one
underlying cause——regardless of whom is governor.
¶127 Thus, in the recent past, a governor has declared
numerous states of emergency premised on the same underlying
causes. Yet the majority reverses course from this established
practice and common sense to arrive at its unreasonable result.
¶128 An examination of the extreme consequences further
highlights the conclusion that this alternative interpretation
renders absurd or unreasonable results. The majority in large
part embraces this alternative interpretation, yet it attempts
to obscure the consequences of its declaration that the Governor
lacked authority to issue Executive Orders #82 and #90. In a
one sentence footnote towards the end of its opinion, the
majority acknowledges the consequence of its declaration: "[a]s
a necessary consequence [of its decision], all executive actions
and orders issued pursuant to the powers triggered by the
Office of the Wisconsin Governor, Executive Order No. 223
18
(Nov. 4, 2016); No. 227 (Dec. 30, 2016),
https://docs.legis.wisconsin.gov/code/executive_orders/2011_scot
t_walker/.
20
No. 2020AP1718-OA.awb
emergency declaration are likewise void." Majority op., ¶43
n.19.19
¶129 Yet, in spite of the astounding breadth of the
asserted consequence of the majority's declaration, it takes
this dissent to task for even discussing the absurdity or
reasonableness of some of those consequences. See id., ¶15 n.6.
Surely, when enacted, the legislature could not have intended
that Wis. Stat. §§ 323.02(16) and 323.10 would be interpreted to
place such a roadblock to effective governmental response to a
worldwide pandemic.
¶130 Among the powers hamstrung by the majority are
critical executive powers set forth by statute that may be
exercised only in a public health emergency——powers that are
essential to saving lives and getting a rapidly-spreading
disease under control.
¶131 As the majority acknowledges, during a public health
emergency DHS is empowered to take critical steps to ameliorate
the emergency. See majority op., ¶35. Yet, these steps can be
Both Order #82 and #90 set the stage for additional
19
emergency measures necessitated by the spread of COVID-19.
Specifically, pursuant to Orders #82 and #90, the Governor
issued several emergency orders mandating the wearing of masks
as a means of stemming the spread of COVID-19.
For example, Governor Evers issued Emergency Order #1
pursuant to Order #82 on July 30, 2020. See Emergency Order #1,
https://evers.wi.gov/Documents/COVID19/EmO01-FaceCoverings.pdf
(July 30, 2020). This emergency order required all individuals
age five and older to wear a face covering in all indoor and
enclosed spaces other than private residences when another
person not a member of the individual's household is present in
the same room or enclosed space.
21
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accomplished only "during the period under which the department
is designated as the lead state agency," which in turn requires
a declaration of a public health emergency. Wis. Stat.
§ 252.041(1). Absent an emergency declaration, do these powers
simply vanish?
¶132 For example, during a public health emergency, DHS's
power includes the essential steps of purchasing vaccine,
antibiotics, and medical supplies. Wis. Stat. § 250.042(2)(a).20
Again, absent an emergency declaration, do these statutory
purchasing powers simply vanish?
¶133 Additionally, absent an emergency declaration,
Wisconsin also risks losing significant federal allotments to
mitigate the economic effects of this pandemic. Section
2302(2)(a) of the federal Families First Coronavirus Response
Act conditions the receipt of emergency supplemental nutrition
allotments on the declaration of states of emergency at both the
federal and state levels. The nonpartisan Legislative Fiscal
Bureau indicated that Wisconsin risks losing nearly $50 million
per month in FoodShare assistance absent an emergency
declaration.21 An absurd result indeed. Without such measures,
what are we left with as we continue the battle against COVID-19
Wisconsin Stat. § 250.042(2)(a) provides that as the
20
public health authority pursuant to an emergency declaration,
DHS may "[p]urchase, store, or distribute antitoxins, serums,
vaccines, immunizing agents, antibiotics, and other
pharmaceutical agents or medical supplies that the department
determines are advisable to control a public health emergency."
Alexandra Bentzen, Legislative Fiscal Bureau, Impact of
21
Ending the State Public Health Emergency on Emergency FoodShare
Allotments (Jan. 27, 2021).
22
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and its fallout? As Judge Rovner recently wrote, "Good luck and
G-d bless, Wisconsin. You are going to need it." Democratic
Nat'l Comm. v. Bostelmann, 977 F.3d 639, 656 (7th Cir. 2020)
(Rovner, J., dissenting).
IV
¶134 Finally, abandoning any vestige of judicial restraint,
the majority denies a motion that was actually made yet reaches
out and grants a motion that was never made. Fabick filed a
motion for a temporary injunction on February 9, 2021,
requesting that Order #105 be temporarily enjoined and Governor
Evers filed a response to that motion on February 22, 2021.
¶135 Although declared moot, Fabick's motion could never
have been granted. Fabick did not sufficiently allege, let
alone attempt to demonstrate that he would suffer any
particularized irreparable harm——a requisite showing in order to
secure any temporary injunction.22 Faced with an inability to
22 A temporary injunction is not to be issued unless (1) the
movant will likely suffer irreparable harm in the absence of an
injunction; (2) the movant has no other adequate remedy at law;
(3) a temporary injunction is necessary to preserve the status
quo; and (4) the movant has a reasonable probability of success
on the merits. Serv. Emps. Int'l Union, Local 1 v. Vos, 2020 WI
67, ¶93, 393 Wis. 2d 38, 946 N.W.2d 35. Competing interests
must be reconciled and the petitioner must satisfy the court
that on balance equity favors issuing the injunction. Pure Milk
Prods. Co-op v. Nat'l Farmers Org., 90 Wis. 2d 781, 800, 280
N.W.2d 691 (1979).
23
No. 2020AP1718-OA.awb
grant the temporary injunction motion, what is the majority to
do? It reaches out and instead grants a motion for a permanent
injunction of Order #105——a motion that was never made.
¶136 Apparently the majority fails to recognize that the
granting of a permanent injunction also requires a showing of
irreparable harm. Werner v. A.L. Grootemaat & Sons, Inc., 80
Wis. 2d 513, 521, 259 N.W.2d 310 (1977) ("While standards for
the granting of temporary and permanent injunctive relief
differ . . . a showing of irreparable injury and inadequate
remedy at law is required for a temporary as well as for a
permanent injunction."). But with no irreparable harm
sufficiently alleged and none whatsoever demonstrated, it is no
surprise that the majority says nothing about it. How could it?
Perhaps the better question is how could the majority grant a
permanent injunction without it?
¶137 Nevertheless, the majority soldiers on. As
justification for its reach, the majority appears to suggest
that a permanent injunction motion was made "in post-argument
motions . . . ." Majority op., ¶41 (emphasis added). That is
incorrect. There was but a singular post argument motion by
Yet nowhere in the majority's analysis are the factors
necessary to grant either a temporary or permanent injunction
even mentioned. The factors likely aren't mentioned because
Fabick plainly does not meet them. Fabick has not established
that he (or any Wisconsin taxpayer) will suffer any harm, much
less irreparable harm. In conclusory fashion, he asserts that
taxpayers are harmed by "wasted public expenditures" due to
staff time drafting, promoting, and enforcing Order #105. But
he does not make any argument that this supposed harm is
irreparable, and we will not develop one for him.
24
No. 2020AP1718-OA.awb
Fabick23 that requested any injunctive relief at all and it was
for a temporary injunction. Similarly the majority justifies
its reach by suggesting that it makes its decision on a
permanent injunction "[a]fter hearing from both parties . . . ."
Id. But to the extent that this artful drafting suggests that
the court actually heard anything from the parties on the issue,
it is misleading. There was neither developed argument nor any
analysis advanced by either party on the issue of a permanent
injunction.
¶138 Ultimately, as the sole justification for its
overreach, the majority points to Fabick's "request [for]
permanent relief." Id., ¶41 n.17. This "request [for]
permanent relief" consists of a twice repeated sentence found in
Fabick's brief in support of his motion for a temporary
injunction in which he asks the court to "ultimately grant a
permanent injunction as part of its final judgment." If the
majority is going to permanently enjoin an executive order of
the Governor, it should do so based on more than a stray request
tucked away in a brief that, in its very title, sets forth that
it is filed in support of a motion for temporary injunction
only. Thus, with a complete failure of demonstrating the
required irreparable harm, with unpersuasive justification and
with scant analysis, the majority permanently enjoins Order #105
and declares it unlawful. See id., ¶¶42-43.
The Legislature filed a motion to participate as amicus
23
in support of Fabick's motion for temporary injunction, but in
its brief addressed the nondelegation doctrine only.
25
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¶139 Recognizing that a permanent injunction is
functionally the equivalent of a declaratory judgment, the
majority denominates its decision as one for declaratory
judgment. But merely changing the label does not remove the
majority's problem with its overreach: no motion for
declaratory judgment regarding Order #105 was made by Fabick.
¶140 What makes the majority's reach even more untenable is
that Fabick has no standing to maintain this action. And if
that is not sufficient to cause the majority to pause, add to
the mix that Order #105 is not properly before the court. It
did not exist when this case was filed and thus could not have
been included in the petition for original action Fabick filed.
¶141 Reaching outside of the orders that were actually
challenged in this case to decide an issue not raised in the
petition for original action is unsound judicial practice. It
grants an end run around Wis. Stat. § (Rule) 809.70(1)(a), which
requires that a petition for original action state the issues
presented by the controversy.
¶142 The consideration of Order #105 at this late juncture
injects a new issue into this case that was not in existence
when the case was filed, briefed, or argued. Yet the majority
allows Fabick to litigate what should be a wholly separate case
as a motion for temporary injunctive relief. And further, as
set forth above, it is a wholly separate case that Fabick does
not have standing to bring. Accordingly, I would deny Fabick's
attempt to backdoor a new claim into this court's consideration.
26
No. 2020AP1718-OA.awb
¶143 The majority's scant analysis of Order #105 fares no
better. Despite purporting to strictly interpret the text of
Wis. Stat. § 323.10, the majority's conclusion regarding Order
#105 finds no textual support. The text of § 323.10 grants the
governor authority to issue an order declaring a state of
emergency and the legislature the power to "revoke[]" that
order. Nowhere, however, does the statute's plain text endow
the legislature with the power to prevent the governor from
issuing such an order in the first place. § 323.10. The
definition of "revoke" clearly limits the legislature's power as
reactive, not preventative: "To annul or make void by taking
back or recalling; to cancel, rescind, repeal, or reverse."
Revoke, Black's Law Dictionary 1580 (11th ed. 2019). The
Governor's issuing a new order after the legislature revokes a
prior, different order is not an "end run" around the statute;
it is a function of the statute as the legislature enacted it.
¶144 If the statute's plain text results in those two co-
equal branches wielding their competing authority against one
another in what the majority calls "a game of whac-a-mole
between the governor and the legislature," majority op., ¶43,
then so be it. Generally, we have to take the statute's plain
and clear text "as we find it." Montello Granite Co. v.
Schultz, 197 Wis. 428, 432, 222 N.W. 315 (1928). Only by
impermissibly "read[ing] words into the statute that the
legislature did not write" could the majority reach the result
it wants. Cf. State v. Schultz, 2020 WI 24, ¶52, 390 Wis. 2d
570, 939 N.W.2d 519. Not only is Executive Order #105
27
No. 2020AP1718-OA.awb
improperly before the court, the specific remedy Fabick seeks on
that order is in the legislature's hands, not ours.
¶145 I conclude with an observation about the application
of the majority opinion to future emergency declarations.
Despite all of its tough talk regarding the Governor's ability
to declare public health emergencies and its declaration against
Order #105, the majority acknowledges that "determining when a
set of facts gives rise to a unique enabling condition may not
always be easy." Majority op., ¶39. In making such an
acknowledgement, the majority necessarily admits that this
opinion may not be the final word on emergency declarations due
to conditions caused by COVID-19.
¶146 Although we are more than a year into this pandemic,
we do not know what it will throw at us next. Even under the
majority's analysis, the threshold question remains whether a
new "enabling condition" exists (I, of course, would phrase the
question in the term the statute uses, "occurrence").
¶147 In sum, the majority opinion sub silentio overrules
over a century of precedent related to taxpayer standing and
fails to discuss the essential statutory term "occurrence,"
while obscuring the consequences of its decision. It further
reaches out and, without any textual support, strikes down Order
#105, which is not properly before the court in the first place.
Ultimately, in the midst of public emergencies such as a global
pandemic, it hampers the ability of governors to safeguard the
health and lives of the people of Wisconsin.
¶148 For the foregoing reasons, I respectfully dissent.
28
No. 2020AP1718-OA.awb
¶149 I am authorized to state that Justice REBECCA FRANK
DALLET and Justice JILL J. KAROFSKY join this dissent.
29
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1