Some interesting developments in Wisconsin’s response to the COVID-19 Pandemic occurred on February 4, 2021. Specifically, the existence of an official state of emergency changed multiple times.
What was the situation as of the morning of February 4?
As of Thursday morning, a state of emergency existed in Wisconsin, which had been issued by Governor Evers under Section 323.10 of the Wisconsin Statutes. This allows the Governor to declare a state of emergency lasting up to 60 days. While under a state of emergency, the Governor has certain powers, such as the ability to “issue such orders as he or she deems necessary for the security of persons and property”. One such power that Governor Evers has exercised was his statewide mask mandate – the latest of multiple similar mask mandates/extensions. You can see the specifics of the mask mandate here.
Aside from automatic expiration after 60 days, a declared state of emergency can end by both bodies of the State Legislature issuing a joint resolution to terminate the state of emergency. The Legislature had begun to address the issue, with the majority of the Senate voting to end the state of emergency last week.
Then what happened?
On February 4, the State Assembly voted to terminate the state of emergency as well and, with it, the statewide mask order. With both houses of the State Legislature having so voted, the state of emergency was terminated, effective immediately, and any orders issued pursuant to it – the mask mandate – became null and void.
Within hours, Governor Evers declared a subsequent state of emergency and re-imposed the mask order, essentially forcing the Legislature to start from scratch in voting to overturn it. The newest order declaring a state of emergency can be found here and the emergency order implementing the same mask mandate that the legislature had stricken, by terminating the state of emergency, can be found here.
What happens next?
There is currently a case awaiting a decision from the Wisconsin Supreme Court about whether a Governor can declare multiple or subsequent states of emergency under Section 323.10 of the Wisconsin Statutes for the same cause or basis. That case was filed on October 15, 2020 by Jere Fabick, a Wisconsin resident, business owner, and frequent donor to legislative and judicial campaigns, arguing that the declaration of more than one 60-day state of emergency during the COVID-19 pandemic has been an unlawful use of the Governor’s powers. The case was briefed, including an amicus brief filed by the State Legislature, and has been awaiting a ruling by the Court since it heard oral arguments on November 16. That ruling, whenever it is issued, will likely clear up much of this controversy. In the meantime, there appears to be nothing to stop a cycle of the Legislature voting to override a state of emergency followed by the Governor immediately declaring a new one, and so on.
So, as we sit, what has changed?
As of the afternoon of Friday, February 5, there have been no further developments. The newly-declared state of emergency and the new (identical) mask order are still in place. Moreover, it is important to keep in mind that local or county-level restrictions are not at all affected by any of this. Residents of Dane County are subject to the Dane County Public Health orders and mandates until further notice.
Stay tuned to KEW Tips for the latest developments. As always, if you wish to discuss the obligations of your business under the latest order, or any state or local orders put in place during the COVID-19 pandemic, feel free to contact Kramer, Elkins & Watt, LLC at 608-709-7115 or email us at var un=’info’;var hn=’kewlaw.com’;document.write(‘‘+un+’@’+hn+”);.
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