Jere Fabick v. Tony Evers
956 N.W.2d 856
Wis.2021Background
- Governor Evers declared a COVID-19 public-health state of emergency on March 12, 2020 (Executive Order #72); that order expired after 60 days on May 11, 2020 and was not legislatively extended.
- The Governor issued later public-health emergency declarations on July 30, 2020 (EO #82) and September 22, 2020 (EO #90), each before the prior order had expired.
- Petitioner Jeré Fabick filed an original-action challenge arguing EO #82 and EO #90 exceeded the governor's authority under Wis. Stat. § 323.10 (which limits a state of emergency to 60 days unless extended by joint resolution of the legislature).
- The Court considered justiciability/standing (taxpayer standing based on National Guard/state expenditures) and statutory interpretation of § 323.10's duration and revocation limits; it did not reach nondelegation on the merits.
- The majority held EO #82 and EO #90 unlawful because § 323.10 forbids successive emergency proclamations based on the same enabling condition past the 60-day limit absent legislative extension; the Court also declared EO #105 unlawful after the legislature revoked EO #104 and the Governor promptly reissued an order.
Issues
| Issue | Plaintiff's Argument (Fabick) | Defendant's Argument (Evers) | Held |
|---|---|---|---|
| Justiciability / standing | Taxpayer standing exists because emergency declarations caused or threaten pecuniary expenditures (e.g., National Guard deployment) | Claims are improper because §323.10 gives remedy to legislature; private taxpayer lacks legally protectable interest | Court allowed taxpayer standing here (threat or past pecuniary expenditure sufficient) and found the action justiciable |
| Scope of §323.10 — successive declarations | Governor may not reissue new emergency declarations for the same enabling condition after a prior 60-day emergency expires without legislative extension | The statute permits successive declarations based on ongoing or changed on-the-ground facts; 60-day limit does not bar renewals | Court held statute's plain text, context, and history forbid repeated declarations for the same enabling condition absent legislative approval; EO #82 and EO #90 unlawful |
| Effect of legislative revocation | If legislature revokes a declared emergency, the Governor cannot immediately reissue a new declaration on the same basis to circumvent revocation | Governor contends revocation is reactive and does not preclude issuing a new order; reissuance can be based on updated facts | Court held legislative revocation is a meaningful check and reissuing an order on the same basis after revocation is unlawful; EO #105 declared unlawful following revocation of EO #104 |
| Constitutional nondelegation challenge | (Raised as alternative) The Governor's broad emergency powers could violate separation of powers if interpreted to permit indefinite unilateral rule | Governor argued legislative revocation and statutory limits suffice as safeguards against unconstitutional delegation | Court resolved case on statutory grounds and did not decide nondelegation; concurrence emphasized separation-of-powers concerns supporting the statutory reading |
Key Cases Cited
- Kalal v. Circuit Court for Dane County, 271 Wis. 2d 633 (Wis. 2004) (principles of statutory interpretation: read text in context to give full effect)
- Loy v. Bunderson, 107 Wis. 2d 400 (Wis. 1982) (standards for declaratory-judgment justiciability)
- S.D. Realty Co. v. Sewerage Comm'n of City of Milwaukee, 15 Wis. 2d 15 (Wis. 1961) (taxpayer standing requires alleged pecuniary loss to taxpayer class)
- Wisconsin Legislature v. Palm, 391 Wis. 2d 497 (Wis. 2020) (recognizing limits on indefinite use of emergency executive powers)
- Panzer v. Doyle, 271 Wis. 2d 295 (Wis. 2004) (analysis of delegation and procedural safeguards limiting delegated power)
- J.W. Hampton, Jr. & Co. v. United States, 276 U.S. 394 (U.S. 1928) (origin of the intelligible-principle approach to nondelegation)