BRIAN HAGEDORN, J: The question in this case is not whether the Governor acted wisely; it is whether he acted lawfully. We conclude he did not. 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.

 

https://drive.google.com/file/d/13WUJmJ7BPk_kEXZ2ANsgSrAkeCTB2MZJ/view?usp=sharing 

SUPREME 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.
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.
ORIGINAL ACTION for declaratory judgment. Declaration of rights; relief granted.

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. 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. 

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. 

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. 

Since this case was argued, the Governor has declared new states of emergency on an ongoing basis, each declared as or 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. 

CONCLUSION 

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. 

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 

By the Court.——Rights declared; relief granted.