Fabick v. Evers

Decision Date31 March 2021
Docket NumberNo. 2020AP1718-OA,2020AP1718-OA
Citation2021 WI 28,396 Wis.2d 231,956 N.W.2d 856
Parties Jeré FABICK, Petitioner, v. Tony EVERS, in his Official Capacity as the Governor of Wisconsin, Respondent.
CourtWisconsin Supreme Court

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.

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.


¶1 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.

¶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 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.


¶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 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.


¶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

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, 320 N.W.2d 175 ; 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 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, 253 N.W.2d 335. 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, 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.

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...

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