Case Name: Lindoo v. Evers
Type of Case: Separation of Powers, Emergency Powers
Court: Polk County Circuit Court
Filed On: August 25, 2020
Current Status: The Wisconsin Supreme Court issued a decision in Fabick v. Evers that Governor Evers’ use of mulitple emergency orders violated the law.
The Wisconsin Institute for Law & Liberty (WILL), on behalf of three Wisconsin residents and taxpayers, filed a lawsuit in Polk County Circuit Court against Governor Tony Evers for violating state law by declaring a second public health emergency on July 30. State law forbids a governor from unilaterally extending a public health emergency beyond 60 days or skirting the law by declaring multiple 60-day emergencies for the same crisis.
On May 12, 2020, Wisconsin Governor Tony Evers’s 60-day public health emergency, declared in relation to the sudden arrival of COVID-19, ended. The legislature had the option to extend the emergency and the expanded executive powers that accompany a state of emergency but declined to take any action.
The end of the emergency heralded the return of our regular constitutional order. The legislature has the responsibility of crafting and passing legislation and the executive branch has the option to sign or veto legislation. Any further statewide responses to COVID-19 ought to have proceeded through this regular process.
But Governor Evers declared a second public health emergency, Executive Order #82, on July 30, seizing emergency powers for a second 60-day period to address the ongoing COVID-19 pandemic. Accompanying the new emergency declaration is a mask mandate applying to all 72 counties.
WILL’s lawsuit is very simple. Governor Evers cannot seize emergency powers more than once to address the same crisis. To interpret the law otherwise, would allow one-person rule by the Governor for what could be a virtually unlimited amount of time whenever the vague statutory definition of a “public health emergency” or “disaster” can be said to be present. The result would be the total breakdown of our constitutional order.
A motion for a temporary injunction was denied and a motion for summary judgment was before the Court when the Wisconsin Supreme Court took the Fabick original action. The Court stayed the proceedings in Polk County, and invited the Polk County plaintiffs to submit an amicus brief in Fabick.
WILL filed an amicus on November 3 and participated in oral arguments on November 6.
Current Status: The Wisconsin Supreme Court issued a 4-3 decision in Fabick v. Evers, Wednesday, to declare Governor Evers’ use of multiple, consecutive emergency declarations, unlawful. Justice Brian Hagedorn, writing for the majority, wrote, “The question in this case is not whether the Governor acted wisely; it is whether he acted lawfully. We conclude he did not.”
- Complaint, August 25, 2020
- Amicus Brief, November 3, 2020
- Motion for Oral Argument, November 3, 2020
- Wisconsin Supreme Court Decision in Fabick v. Evers, March 31, 2021