FABICK V. EVERS DECISION AND IMPACT ON COUNTIES
|On Wednesday, March 31, 2021, the Wisconsin Supreme Court issued a decision in the case Fabick v. Evers. As you may recall, the case involved a challenge to the Governor’s ability to declare successive states of emergency based upon similar underlying emergency conditions – i.e., the COVID-19 pandemic.
Essentially, Mr. Fabick asked the Court to declare the Governor’s emergency declarations from July, September, November, January, and February (issued immediately after the Legislature, by joint resolution, terminated the then-existing declaration) null and void. In construing Section 323.10 of the Statutes, the Court, in a 4-3 decision, concluded Governor Evers exceeded his statutory authority in issuing the successive emergency declarations based on the same underlying emergency.
As a result, the current order (Order #105) and the previous orders were declared invalid. The vast majority of press reports have described the Supreme Court’s ruling as “ending the mask mandate.” And while the decision indeed ends the statewide mask mandate, there are likely additional impacts. As we have previously discussed with counties, the Governor’s declared state of emergency triggers certain emergency powers in state agencies and allows relaxation of certain rules.
As well, there are federal programs that rely upon a declared state of emergency in a particular state for authorization. In January of this year, as the Legislature considered the joint resolution terminating the gubernatorial state of emergency, we prepared a memorandum outlining the potential impact of the emergency declaration’s elimination. A copy of our memorandum, which we are in the process of reviewing and updating, can be found here. We will continue our analysis of the Fabick decision and its impact on counties.
We also understand counties may have questions surrounding the ability to implement local mask mandates.
Our Guidance in Implementing Regulations Surrounding Communicable Diseases: An Analysis of Local Health Department and Local Health Officer Powers, Duties, and Enforcement Actions was published in August 2020 and provides the framework for the analysis of a county’s ability to enact and enforce a local health regulation.
View the Guidance here. A supplement to the Guidance was issued in October of 2020 and can be viewed here.
JOIN US MONDAY, APRIL 5, 2020 FOR COUNTY LEADERSHIP CALL
In addition, we will be prepared to answer questions and provide additional insight during our county leadership call scheduled for Monday, April 5, 2020. Stay tuned for your inbox for next week’s meeting invite.
The merits of the Court’s decision in Fabick can be debated. A 4-3 decision recognizes a lack of uniform thought as to the legal analysis surrounding the Governor’s emergency powers. What cannot be debated, however, is the impact of the decision on counties and the critical services delivered to citizens through the pandemic. If you have questions or concerns surrounding your county’s operations and how they may be impacted, please do not hesitate to contact the Association.