The Wisconsin Supreme Court on March 31 issued a 4-3 ruling invalidating Governor Evers’ executive orders declaring additional COVID-related public health emergencies following the original 60-day public health emergency order in March 2020. As a result, the current state-wide mask mandate issued as Emergency Order #1 on February 2021 is no longer valid. Emergency Order #1 had been set to expire on April 4.
After reviewing the language of s. 323.10 and the legislative history of that section, the majority opinion written by Justice Brian Hagedorn concluded that the statute only permitted the Governor to issue a single, 60-day public health emergency related to COVID unless the legislature extended the order.
Notably, the Court pointed to legislative history that Wisconsin’s current public health emergency statute “borrowed extensively” from model public health emergency legislation circulated nationally after the 9/11 attacks. However, unlike the model legislation which explicitly allowed the Governor to renew a public health emergency declaration every 30 days, the Court noted that Wisconsin did not adopt that language and instead incorporated into its statute already existing emergency declaration language that had a longer 60-day time period and the provision regarding extension by joint resolution of the legislature.
The majority opinion declined to address whether the order was an unconstitutional delegation or authority or violation of separation of powers, but instead solely resolved the case based on an interpretation of Wisconsin’s public health emergency statute, s. 323.10, Wis. Stats. The Court’s majority opinion also did not provide any indication that a private entity would be prohibited from having a policy requiring masks on its premises.
The Court’s majority opinion also did not place any limits on the authority of local jurisdictions to impose mask mandates, and in fact pointed to differences between the provisions in the declaration of emergency statute regarding state-wide orders versus local emergency declarations and orders. The Milwaukee Journal Sentinel has compiled this list of local jurisdictions that have their own mask mandates in effect.
If you have questions about the decision, contact Matthew Stanford, WHA General Counsel at mstanford@wha.org.