Jere Fabick v. Tony Evers

2021 WI 28, 956 N.W.2d 856, 396 Wis. 2d 231

• Court: Wisconsin Supreme Court
• Decided: March 31, 2021
• Docket: 2020AP001718-OA
• Status: Published

Opinion

2021 WI 28

SUPREME COURT OF WISCONSIN CASE NO.: 2020AP1718-OA

COMPLETE TITLE: Jeré Fabick, Petitioner, v. Tony Evers, in his Official Capacity as the Governor of Wisconsin, Respondent.

ORIGINAL ACTION

OPINION FILED: March 31, 2021 SUBMITTED ON BRIEFS: ORAL ARGUMENT: November 16, 2020

SOURCE OF APPEAL: COURT: COUNTY: JUDGE:

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. NOT PARTICIPATING:

ATTORNEYS: 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.

2 2021 WI 28

NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2020AP1718-OA

STATE OF WISCONSIN : IN SUPREME COURT

Jeré Fabick,

Petitioner, FILED v. MAR 31, 2021 Tony Evers, in his Official Capacity as the Governor of Wisconsin, Sheila T. Reiff Clerk of Supreme Court

Respondent.

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.

ORIGINAL ACTION for declaratory judgment. Declaration of

rights; relief granted.

¶1 BRIAN HAGEDORN, J. 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. No. 2020AP1718-OA

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

All subsequent references to the Wisconsin Statutes are to 1

the 2019-20 version unless otherwise indicated.

2 No. 2020AP1718-OA

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.

I. BACKGROUND

¶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 3 No. 2020AP1718-OA

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.

II. DISCUSSION

¶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

2 In addition to the statutory argument, the court also asked the parties to address the following: "If Executive Order #82 and Executive Order #90 are authorized by Wis. Stat. § 323.10, whether that statute is an unconstitutional delegation of legislative power to the executive branch." Because we resolve this on statutory grounds, we do not reach this issue. 3 Executive Order #90 expired in November. Governor Evers stated and followed through on his intention to continue declaring states of emergency under similar theories. It is proper that this court provide clarity on an issue that is of statewide significance, especially when the 60-day limitation on these orders renders timely appellate review difficult. Therefore, even if a mootness concern could be raised, review 4 No. 2020AP1718-OA

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; 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

satisfies generally recognized exceptions to the mootness doctrine. See Marathon County v. D.K., 2020 WI 8, ¶19, 390 Wis. 2d 50, 937 N.W.2d 901 (listing the five mootness doctrine exceptions). 4The second and fourth conditions——adversity and ripeness—— are not challenged by the Governor and are clearly satisfied here.

5 No. 2020AP1718-OA

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. 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, 6 No. 2020AP1718-OA

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.

5 When the initial orders were challenged before us, it appears the then-existing federal-state funding placed upon Wisconsin taxpayers the responsibility to fund 25 percent of the National Guard forces deployed in response to COVID-19. See https://trumpwhitehouse.archives.gov/presidential-actions/ memorandum-extension-use-national-guard-respond-covid-19- facilitate-economic-recovery/ (noting the federal government funded 75 percent of the cost). As the dissent notes, it appears the federal government may now be choosing to fund 100 percent of the National Guard expenditures. See Dissent, ¶98. The dissent suggests that this change means Fabick has lost the standing he had earlier in the case. However, a century's worth of precedent makes clear that threatened, as well as actual, pecuniary loss can be sufficient to confer standing. See Warden v. Hart, 162 Wis. 495, 497, 156 N.W. 466 (1916) (noting a taxpayer has standing when the taxpayer is "threatened with or suffers a pecuniary loss"); see also, Krier v. Vilione, 2009 WI 45, ¶20, 317 Wis. 2d 288, 766 N.W.2d 517 ("the plaintiffs must show that they suffered or were threatened with an injury to an interest that is legally protectable"); State ex rel. First Nat. Bank of Wis. Rapids v. M & I Peoples Bank of Coloma, 95 Wis. 2d 303, 308, 290 N.W.2d 321 (1980) (same); Marx v. Morris, 2019 WI 34, ¶35, 386 Wis. 2d 122, 925 N.W.2d 112 (same). If National Guard funding may be altered by the stroke of the President's pen, as President Biden has apparently done, this status quo can certainly be altered again. Taxpayer funds have already been spent in support of National Guard deployments pursuant to these emergency powers. The imminent threat of unreimbursed costs, past and future, is sufficient to confer taxpayer standing on Fabick under the circumstances of this case.

7 No. 2020AP1718-OA

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 declare states of emergency in this circumstance.6

6 The dissent, in contrast, spends considerable space discussing outcome-focused concerns. But our role is not to rule in favor of outcomes we like; it is to interpret and apply the law, whether we like it or not.

8 No. 2020AP1718-OA

1. Statutory Structure

¶16 The legislative policy choice that decides this case

is found in the text of Wis. Stat. § 323.10 along with its

incorporated definitions. When interpreting statutory text, our

assignment "is to determine what the statute means so that it

may be given its full, proper, and intended effect." State ex

rel. Kalal v. Circuit Court for Dane Cnty., 2004 WI 58, ¶44, 271

Wis. 2d 633, 681 N.W.2d 110. To find this meaning, we interpret

the text "in the context in which it is used; not in isolation

but as part of a whole; in relation to the language of

surrounding or closely-related statutes; and reasonably, to

avoid absurd or unreasonable results." Id., ¶46; see also Wis.

Stat. § 990.01(1).

¶17 Here is the full text of Wis. Stat. § 323.10:

The governor may issue an executive order declaring a state of emergency for the state or any portion of the state if he or she determines that an emergency resulting from a disaster or the imminent threat of a disaster exists. If the governor determines that a public health emergency exists, he or she may issue an executive order declaring a state of emergency related to public health for the state or any portion of the state and may designate the department of health services as the lead state agency to respond to that emergency. If the governor determines that the emergency is related to computer or telecommunication systems, he or she may designate the department of administration as the lead agency to respond to that emergency. A state of emergency shall not exceed 60 days, unless the state of emergency is extended by joint resolution of the legislature. A copy of the executive order shall be filed with the secretary of state. The executive order may be revoked at the

9 No. 2020AP1718-OA

discretion of either the governor by executive order or the legislature by joint resolution. ¶18 The first sentence gives the governor authority to

"issue an executive order declaring a state of emergency." Wis.

Stat. § 323.10. The governor may declare the state of emergency

"for the state or any portion of the state." Id. And the

condition enabling the governor to declare a state of emergency—

—the "enabling condition," as we will call it——is the governor's

determination "that an emergency resulting from a disaster or

the imminent threat of a disaster exists." Id. A "disaster" is

specifically defined in Wis. Stat. § 323.02(6). It "means a

severe or prolonged, natural or human-caused, occurrence that

threatens or negatively impacts life, health, property,

infrastructure, the environment, the security of this state or a

portion of this state, or critical systems, including computer,

telecommunications, or agricultural systems." § 323.02(6).

¶19 The second sentence of Wis. Stat. § 323.10 describes a

state of emergency related to public health. It is similar, but

contains key distinctions. The governor first has to "determine[] that a public health emergency exists." Wis. Stat.

§ 323.10. The enabling condition here is a "public health

emergency," a phrase that is separately defined in Wis. Stat.

§ 323.02(16)——a definition we'll turn to shortly. When that

enabling condition is satisfied, the governor "may issue an

executive order declaring a state of emergency related to public

health for the state or any portion of the state." § 323.10.

10 No. 2020AP1718-OA

¶20 As the Governor reads it, the first sentence of Wis.

Stat. § 323.10 is the operative, overarching, authorizing

sentence allowing a state of emergency to be declared in the

event of a disaster. In his telling, the next two sentences

simply state which agency leads the response for certain types

of emergencies——DHS serving as the lead agency for public health

emergencies. This reading is incorrect.

¶21 The first two sentences of Wis. Stat. § 323.10 contain

parallel but distinct authorizing language. If the second

sentence merely clarifies that DHS may be the lead agency, the

first half of that sentence (the governor "may issue an

executive order declaring a state of emergency related to public

health for the state or any portion of the state") would be

meaningless. It is only the second half of the sentence that

empowers the governor to "designate [DHS] as the lead state

agency to respond to that emergency." Id. Nor would a "public

health emergency" be a separately-delineated enabling condition.

The legislature could have just defined a public health emergency as another kind of "disaster." It did not. The

enabling condition for a state of emergency related to public

health is a "public health emergency," not a "disaster," each

term having its own separate definition.

¶22 Moreover, the public health emergency authorization is

different than the language that follows it in Wis. Stat.

§ 323.10: "If the governor determines that the emergency is

related to computer or telecommunication systems, he or she may designate the department of administration as the lead agency to 11 No. 2020AP1718-OA

respond to that emergency." Here, the reference to computer or

telecommunication systems explicitly ties back into the

definition of a disaster in Wis. Stat. § 323.02(6), which

specifies that a disaster can be an "occurrence that threatens

or negatively impacts . . . critical systems, including computer

[and] telecommunications." Notably, this sentence contains no

separate authorizing language.

¶23 In short, the governor's emergency powers under Wis.

Stat. § 323.10 describe two types of emergencies, each with its

own enabling condition: a "disaster" as defined in Wis. Stat.

§ 323.02(6), and a "public health emergency" as defined in

§ 323.02(16).7

¶24 The executive orders under review here8 declared states

of emergency related to public health due to ongoing challenges

7 The dissent suggests the word "occurrence" rather than the phrase "enabling condition" is the more appropriate lens through which we should read the statute. However, the word "occurrence" is nowhere to be found in Wis. Stat. § 323.10. Rather, the governor's powers in § 323.10 are framed as a type of if-then statement (albeit without an explicit "then"). That is, if and only if the governor finds a condition met may he declare a certain type of emergency. We use the phrase "enabling condition" to explain what the statute clearly says. It requires the condition be satisfied in order to enable, or trigger, the ability to declare a state of emergency and deploy emergency powers. The dissent's focus instead on the term "occurrence" ignores that a "public health emergency" may be declared upon either "the occurrence or imminent threat of an illness or health condition." Wis. Stat. § 323.02(16) (emphasis added). Therefore, the dissent's attempt to tie Wis. Stat. § 323.10's duration limitations solely to the term "occurrence" misses the mark. 8 Executive Order #105, which was issued and raised after initial briefing had been completed, is separately discussed below. 12 No. 2020AP1718-OA

in responding to COVID-19. All three proclaimed "that a public

health emergency, as defined in Section 323.02(16) of the

Wisconsin Statutes, exists for the State of Wisconsin." When

exercising this power, Wis. Stat. § 323.10 contains additional

relevant limits on the governor: the enabling condition and

duration limitations.

2. Enabling Condition

¶25 Wisconsin Stat. § 323.02(16) defines the enabling

condition for a state of emergency related to public health as

follows:

"Public health emergency" means the occurrence or imminent threat of an illness or health condition that meets all of the following criteria:

(a) Is believed to be caused by bioterrorism or a novel or previously controlled or eradicated biological agent.

(b) Poses a high probability of any of the following:

1. A large number of deaths or serious or long-term disabilities among humans.

2. A high probability of widespread exposure to a biological, chemical, or radiological agent that creates a significant risk of substantial future harm to a large number of people. ¶26 No one disputes that COVID-19 meets this definition.

COVID-19 is an "illness or health condition" caused by "a

novel . . . biological agent" that poses a high probability of

death, a risk sadly realized for thousands of Wisconsinites,

hundreds of thousands Americans, and millions more worldwide. Even if it were a close call——and it's not——Wis. Stat. § 323.10

13 No. 2020AP1718-OA

leaves the determination that a public health emergency exists

to the governor ("If the governor determines"). In any event,

COVID-19 presents a public health emergency that enables the

governor to declare a state of emergency related to public

health under § 323.10. That however, does not end the analysis

because § 323.10 imposes a second set of limitations on the

governor's power.

3. Duration Limitations

¶27 This brings us to the duration-related limitations in

Wis. Stat. § 323.10. The statute provides that a state of

emergency "may be revoked at the discretion of either the

governor by executive order or the legislature by joint

resolution," and a "state of emergency shall not exceed 60 days,

unless the state of emergency is extended by joint resolution of

the legislature." § 323.10. These directives can be distilled

into three statutory commands. First, the initial duration of a

state of emergency is determined by the governor, but it "shall not exceed" 60 days. Second, a state of emergency may be cut

shorter than the initial duration by either the governor through

executive order or by the legislature through joint resolution.

Finally, a state of emergency may be extended longer than 60

days by the legislature alone.

¶28 These are clear statutory commands, plainly stated.

They compel the conclusion that the legislature enacted Wis.

Stat. § 323.10's time-limiting language to meaningfully constrain the governor's authority to govern by emergency order. 14 No. 2020AP1718-OA

The plain language of the statute explains that the governor

may, for 60 days, act with expanded powers to address a

particular emergency. Beyond 60 days, however, the legislature

reserves for itself the power to determine the policies that

govern the state's response to an ongoing problem. Similarly,

when the legislature revokes a state of emergency, a governor

may not simply reissue another one on the same basis.

Therefore, where the governor relies on the same enabling

condition for multiple states of emergency, or declares a new

state of emergency to replace a state of emergency terminated by

the legislature, the governor acts contrary to the statute's

plain meaning. If it were otherwise, § 323.10's duration-

limiting provisions would cease to perform any meaningful

function. These limitations would be no more than perfunctory

renewal requirements and would serve as merely a trivial check

on indefinite emergency executive powers. The text of § 323.10

therefore must be read to forbid the governor from proclaiming

repeated states of emergency for the same enabling condition absent legislative approval.9

9 See Midwest Inst. of Health, PLLC v. Gov. of Mich., N.W.2d , 2020 WL 5877599, *6-8 (Mich. 2020) (interpreting similar time-limiting language in a Michigan statute empowering the governor to declare states of emergency to impose meaningful time constraints on the governor's power).

15 No. 2020AP1718-OA

¶29 This straightforward reading of Wis. Stat. § 323.10 is

further confirmed by related provisions and statutory context.10

Its statutory neighbor, Wis. Stat. § 323.11, outlines a similar

emergency declaration power for local governments.11 If certain

conditions support it, a local government may declare an

emergency by the "governing body of any local unit of

government." § 323.11. But notably, "The period of the

emergency shall be limited by the ordinance or resolution to the

time during which the emergency conditions exist or are likely

to exist." Id. This unmistakably shows that when the

legislature wishes to authorize an emergency response that is

coextensive with the emergency conditions, it knows how to say

so. And quite conspicuously, it did not say so in the

immediately preceding section, § 323.10, discussing the

governor's ability to declare a state of emergency. The most

reasonable way to read these provisions together, as we must, is

that the governor's power is more circumscribed. The governor's

power to act unilaterally on an emergency basis is limited by both a 60-day limit and by the legislature's power to terminate

the emergency declaration.

See State ex rel. Kalal v. Circuit Court for Dane Cnty., 10

2004 WI 58, ¶46, 271 Wis. 2d 633, 681 N.W.2d 110 ("[S]tatutory language is interpreted in the context in which it is used; not in isolation but as part of a whole; in relation to the language of surrounding or closely-related statutes.").

The emergency powers of local governments are described 11

in Wis. Stat. § 323.14(4).

16 No. 2020AP1718-OA

¶30 Statutory history supports this interpretation as

well.12 The original predecessor to modern-day Wis. Stat.

§ 323.10 was enacted in the 1950s during an escalating Cold War.

It authorized the governor to proclaim a state of emergency

"[w]hen the governor finds that a disaster due to an act of war

is imminent or has occurred." Wis. Stat. § 21.02(2) (1955-56).

This statute contained no time limit at all, stating: "The

governor shall revoke the proclamation by order, or the

legislature may revoke the proclamation by joint resolution,

whenever either shall deem it appropriate." Id. However, it

also required the governor to "call the legislature into special

emergency session." Id. The natural expectation was that the

legislature would have something to say about how Wisconsin

should respond to ongoing threats.

¶31 In 1959, the law was amended. Ch. 628, Laws of 1959.

It expanded the circumstances under which an emergency may be

declared to when "an emergency resulting from enemy action

12"By analyzing the changes the legislature has made over the course of several years, we may be assisted in arriving at the meaning of a statute." Richards v. Badger Mut. Ins. Co., 2008 WI 52, ¶22, 309 Wis. 2d 541, 749 N.W.2d 581 (citing Kalal, 271 Wis. 2d 633, ¶69). Statutory history, which "encompasses the previously enacted and repealed provisions of a statute," "is part of a plain meaning analysis." Id.; see also Wis. Stat. § 990.001(7) ("A revised statute is to be understood in the same sense as the original unless the change in language indicates a different meaning so clearly as to preclude judicial construction."); Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 256 (2012) ("If the legislature amends or reenacts a provision other than by way of a consolidating statute or restyling project, a significant change in language is presumed to entail a change in meaning.").

17 No. 2020AP1718-OA

exists" or when "an emergency growing out of natural or man-made

disaster, except from enemy action, exists." Wis. Stat.

§§ 22.01(4)(e), 22.02(1) (1959-60). The legislature removed the

requirement that the legislature be called into session,

however. Instead, it imposed time limitations on emergency

declarations.13 For enemy-action-related disasters, the

legislature added: "The period of the state of emergency shall

not extend beyond 60 days unless extended by joint resolution of

the legislature." § 22.01(4)(e) (1959-60). And for natural or

man-made disasters, "The period of the state of emergency shall

not extend beyond 30 days unless extended by joint resolution of

the legislature." § 22.02(1) (1959-60). This basic framework

remained for decades, albeit with some reorganization and other

minor changes.

¶32 Then in 2002, the legislature adopted portions of a

Model State Emergency Health Powers Act ("MSEHPA") that had been

13Chapter 628, Laws of 1959, was initially proposed to the legislature by the Office of Civil Defense. In its initial form, the proposal did not contain a time limitation. Citing constitutional concerns with the mandatory legislative session call in the 1955 law, the proposal eliminated the requirement that the governor call a special session after declaring a state of emergency. Through the legislative process, the legislature agreed to eliminate the requirement to call a legislative session, but it added the time limit, replacing one constraint on emergency power with another.

Although we tread carefully when drawing inferences from legislative history, the evidence from the drafting process here supports reading Wis. Stat. § 323.10's time-limiting language to meaningfully check the governor's emergency powers. See Kalal, 271 Wis. 2d 633, ¶51 (noting that legislative history may be consulted to confirm a plain meaning interpretation).

18 No. 2020AP1718-OA

proposed in the wake of 9/11.14 These revisions, adopted in 2001

Wis. Act 109, added the public health emergency to Wisconsin

law. 2001 Wis. Act 109, §§ 340j, 340L. The legislature

borrowed extensively from the model act in drafting these

provisions, including its definition of a "public health

emergency." MSEHPA § 104(m) (Ctr. for L. and the Pub.'s Health

at Georgetown and Johns Hopkins Univs., Proposed Official Draft

Oct. 23, 2001); 2001 Wis. Act 109, § 340j. But the legislature

did not adopt every model provision. Notably, it did not adopt

the proposal to allow the governor to renew the public health

emergency declaration every 30 days. MSEHPA § 405(b). Rather,

it incorporated this language into its already-existing

emergency declaration language with its already-existing time

limitations. 2001 Wis. Act 109, § 340L.

¶33 In 2009 Wis. Act 42, the legislature renumbered the

statute as Wis. Stat. § 323.10 and added emergencies related to

computer or telecommunications systems. 2009 Wis. Act. 42,

§ 72. It also eliminated the 30- and 60-day distinction and adopted a universal 60-day limit for all states of emergency.

Id.

¶34 Viewing this history as a whole, it confirms the plain

meaning of the statutory language. The initial time-unlimited

The September 11, 2001 attacks were "the deadliest 14

terrorist attacks on American soil in U.S. history." Nineteen terrorists undertook a series of airline hijackings, crashing the hijacked aircraft into occupied buildings. Tragically, nearly 3,000 people lost their lives in the attacks. https://www.britannica.com/event/September-11-attacks.

19 No. 2020AP1718-OA

state of emergency with a call for a legislative session was

restructured, creating a time-limited set of emergency powers,

extendable only by the legislature and subject to the

legislature's termination. The governor——and, in a public

health emergency, DHS——are given some time to exercise

extraordinary powers when an emergency occurs. This is the

nature of an emergency; it is an unplanned event that warrants

immediate attention and may not lend itself to a timely

legislative response.

¶35 In this context, it makes sense that the legislature

would allow the executive branch to exercise emergency powers

only on a temporary basis. During a state of emergency, the

statutes give the governor expanded powers, including the

ability to:

 Prioritize some emergency-related contracts over

others, Wis. Stat. § 323.12(4)(a);

 Issue orders "for the security of persons and

property," § 323.12(4)(b);  Enter into contracts to respond to the emergency,

§ 323.12(4)(c);

 Suspend administrative rules, § 323.12(4)(d); and

 Waive fees for certain permits, licenses, or

approvals, § 323.12(4)(e).

A state of emergency related to public health triggers

additional statutory powers. For example, DHS is given

temporary power to purchase vaccines, Wis. Stat. § 250.042(2)(a), to order individuals to be vaccinated, Wis. 20 No. 2020AP1718-OA

Stat. § 252.041(1)(a), and to isolate or quarantine individuals

who are unable or unwilling to be vaccinated, § 252.041(1)(b).

Also, under Wis. Stat. § 252.06, certain expenses incurred

during a state of emergency related to public health may be paid

from specific appropriations, meaning a declared public health

emergency can require state taxpayers to pay for certain

expenditures. See § 252.06(10)(c).15

¶36 The statutory language suggests the legislature gave

the executive branch expansive, but temporary, authority to

respond to emergencies.16 When the governor employs those powers

beyond the time limits imposed by the legislature, or after

revocation of those powers by the legislature, he wields

authority never given to him by the people or their

representatives. We conclude that Wis. Stat. § 323.10's

duration-limiting language forbids the governor from declaring

successive states of emergency on the same basis as a prior

15We cite and perfunctorily summarize these powers to illustrate the expanded authority reflected in the statutory design. We do not interpret these provisions here, nor do we opine on the constitutionality of any of these or other related provisions.

The dissent finds it an absurd result that a governor's 16

power to act on an emergency basis would be temporary and terminable by the legislature when a threat like the present virus exists for an extended period of time. Quite the contrary. It is not only not absurd, it is eminently reasonable to think that the legislature drafted a law that conferred limited executive power to act unilaterally, but reserved for itself the power to enact or not enact laws to guide the state through a prolonged crisis. Legislative, rather than executive, policy-making is how our constitutional design ordinarily works.

21 No. 2020AP1718-OA

state of emergency, and that the governor may not reissue a new

emergency declaration following legislative revocation of a

state of emergency declared on the same basis.

C. Application

¶37 In support of the challenged emergency declarations

before us, the Governor argues the 60-day limit is no bar to

multiple declarations of emergency based on the same public

health emergency. Our analysis above forecloses this

interpretation. But the Governor makes an alternative argument.

He asserts that each declaration was supported by differing on-

the-ground conditions related to COVID-19. In essence, he

argues the ups and downs of COVID-19 have created independent

enabling conditions thereby renewing his power to declare a new

state of emergency with each new front in the fight against

COVID-19. The dissent agrees. It argues that a new emergency

may be declared as long as the governor drafts "a new set of on-

the-ground facts." Dissent, ¶116. ¶38 This approach, however, does what a proper

consideration of the entire statute does not permit——it reads

the duration limitations right out of the law. A governor will

surely have little difficultly drafting a new emergency order

stating that the challenges or risks are a little different now

than they were last month or last week. So long as the

emergency conditions remain, the governor would possess

indefinite emergency power under this atextual theory. The more reasonable reading is that the 60-day time limit and legislative 22 No. 2020AP1718-OA

revocation power are real limitations that constrain the

governor's power to deploy emergency powers with regard to that

emergency. Statutory restrictions on executive power cannot be

avoided by modest updates to the "whereas" clauses of an

emergency declaration.

¶39 We recognize that determining when a set of facts

gives rise to a unique enabling condition may not always be

easy. But here, COVID-19 has been a consistent threat, and no

one can suggest this threat has gone away and then reemerged.

The threat has ebbed and flowed, but this does not negate the

basic reality that COVID-19 has been a significant and constant

danger for a year, with no letup. In the words of the statute,

the occurrence of an "illness or health condition" caused by a

"novel . . . biological agent" has remained, unabated.

¶40 In this case, we conclude that Governor Evers relied

on the same enabling condition for the states of emergency

announced in Executive Orders #72, #82, and #90. The states of

emergency proclaimed in Executive Orders #82 and #90 therefore reached beyond the power given to the governor under Wis. Stat.

§ 323.10, impermissibly extending the use of emergency powers in

violation of the time limitations explicit in the statute. It

matters not that the legislature did not take action to revoke

these emergency declarations initially challenged by Fabick.

Whether the legislature exercises its authority to terminate an

unlawfully declared state of emergency has no bearing on whether

it was lawful.

23 No. 2020AP1718-OA

¶41 Several times in briefing before this court, and at

oral argument, the Governor suggested Wis. Stat. § 323.10's

provision giving the legislature authority to revoke a state of

emergency supported his reading of the 60-day time limit as

permitting renewals precisely because the legislature had an

effective check. Since this case was argued, however, the

legislature did revoke the state of emergency declared in

Executive Order #104, only to have a new one——in Executive Order

#105——immediately declared by the Governor. In post-argument

motions and briefing, Fabick asks that we declare Executive

Order #105 invalid as well. This case has come to us on a

petition for original action and, somewhat atypically, it

touches subsequent and evolving orders on the same matters.

Therefore we believe the ongoing emergency orders are properly

before us. After hearing from both parties, we conclude it is

appropriate for us to address Executive Order #105.17

¶42 As we have discussed, Wis. Stat. § 323.10 provides

that an emergency declaration order "may be revoked at the discretion of . . . the legislature by joint resolution." In

order to have any effect, this provision must mean that the

governor may not simply reissue an emergency declaration revoked

The dissent focuses on Fabick's more limited request for 17

a temporary injunction of Executive Order #105, but he did request permanent relief as well. Fabick plainly seeks a decision from this court making clear that Executive Order #105 was issued in excess of the Governor's powers. The declaratory relief we choose to grant in this case is appropriate.

24 No. 2020AP1718-OA

by the legislature.18 Any other interpretation would render the

legislature's statutory power to revoke an emergency declaration

illusory. The statute gives the legislature the power to

override a governor's declaration of emergency, not the other

way around.

¶43 The Governor defends Executive Order #105 as different

than Executive Order #104 on something he says is new——the

purported loss of federal nutrition benefits——along with updates

regarding the current threats presented by COVID-19. However,

if an emergency declaration is a prerequisite to receiving these

funds, this was no less true during the operation of Executive

Order #104, which the legislature revoked. The Governor cannot

make an end run around legislative revocation simply by

itemizing a previously unidentified justification for the state

of emergency. Reading the statute to encourage a game of whac-

a-mole between the governor and legislature would defeat Wis.

Stat. § 323.10's explicit legislative check on the governor's

emergency power. The legislature has exercised its statutory

In its original merits briefing, the Governor repeatedly 18

assured the court that the legislature had the power to end a state of emergency. For example, the Governor argued, "Wis. Stat. § 323.10 explicitly empowers the Legislature to determine the propriety of an executive order declaring a state of emergency. If the Legislature concludes Governor Evers improperly issued Executive Order 90, the Legislature may revoke it at will." And again, "If the Legislature believes the Governor has issued an improper state of emergency order, it can take immediate action to end it."

25 No. 2020AP1718-OA

power to revoke Executive Order #104. Accordingly, we declare

Executive Order #105 unlawful.19

III. CONCLUSION

¶44 Read according to its plain language, in context,

along with surrounding statutes, and consistent with its

purpose, the best reading of Wis. Stat. § 323.10 is that it

provides the governor the authority to declare a state of

emergency related to public health when the conditions for a

public health emergency are satisfied. But when later relying

on the same enabling condition, the governor is subject to the

time limits explicitly prescribed by statute. Therefore, we

declare that Executive Orders #82 and #90——both of which declare

a public health emergency in response to COVID-19——were unlawful

under Wis. Stat. § 323.10.

¶45 We also received a motion and briefing on the

lawfulness of Executive Order #105. Based on the legislature's

revocation of Executive Order #104, a power specifically granted to the legislature in Wis. Stat. § 323.10, we declare Executive

Order #105 unlawful as well.20

19As a necessary consequence, all executive actions and orders issued pursuant to the powers triggered by the emergency declaration are likewise void. 20In addition, Fabick asked us to take judicial notice of Executive Orders #95 and #104. We have already taken judicial notice of Executive Order #95, and we also take judicial notice of Executive Order #104. Fabick also sought a temporary injunction of Executive Order #105, which is denied as moot.

26 No. 2020AP1718-OA

By the Court.——Rights declared; relief granted.

27 No. 2020AP1718-OA.rgb

¶46 REBECCA GRASSL BRADLEY, J. (concurring). "[W]e have

a government of laws and not of men."1 Governor Tony Evers'

successive declarations of emergency——each stemming from the

COVID-19 pandemic——violate the law, specifically Wis. Stat.

§ 323.10's express temporal limitation: "A state of emergency

shall not exceed 60 days unless the state of emergency is

extended by joint resolution of the legislature." Because the

Wisconsin Legislature never extended Governor Evers' declared

state of emergency, it ended on May 11, 2020. Any exercise of

executive power in the name of the COVID-19 pandemic beyond that

date is unlawful unless the people consent, through their

elected representatives in the legislature.

¶47 Governor Evers' interpretation of Wis. Stat. § 323.10

as a license to unilaterally decree consecutive states of

emergency based upon the same underlying cause would violate the

structural separation of powers embedded in the Wisconsin

Constitution, rendering the statute an unconstitutional

delegation of legislative power to the executive branch. In preservation of the people's inherent right to liberty, the

Framers of the United States Constitution devised a system of

separate and distinct powers among the three branches of

government. "To the Framers of the United States Constitution,

the concentration of governmental power presented an

extraordinary threat to individual liberty: 'The accumulation

of all powers, legislative, executive, and judiciary, in the

Morrison v. Olson, 487 U.S. 654, 697 1 (Scalia, J., dissenting) (citing Part the First, Article XXX, of the Massachusetts Constitution of 1780).

1 No. 2020AP1718-OA.rgb

same hands, whether of one, a few, or many, . . . may justly be

pronounced the very definition of tyranny.' The Federalist No.

47, at 298 (James Madison) (Clinton Rossiter ed., 1961)."

Gabler v. Crime Victims Rights Bd., 2017 WI 67, ¶4, 376

Wis. 2d 147, 897 N.W.2d 384 (alterations in original). The

Framers were inspired by the wisdom of Montesquieu: "There can

be no liberty where the legislative and executive powers are

united in the same person." The Federalist No. 47, at 302

(quoting Baron de Montesquieu, XI The Spirit of the Laws 216

(John Nourse and Paul Vaillant eds., 1758)). The people of

Wisconsin adopted the same separation of governmental powers in

our state constitution.

¶48 We sustain this separation of powers without

exception, even in a pandemic. Accordingly, this court does not

consider the prudence of particular measures to address the

pandemic; such policy decisions rest with the legislature, not

the judiciary. This case is about who has the power to make

those decisions. The Wisconsin Constitution answers that question——it is the legislature's duty to make the laws that

govern our lives, the governor's duty to execute them, and the

judiciary's duty to ensure they comport with the constitution.

The legislature enacted a law empowering the governor to respond

to a public health emergency within a period prescribed by the

legislature, after which his authority expires unless extended

by the people's representatives in the legislature. The

majority opinion reaffirms the principle established in Wisconsin Legislature v. Palm last year: "in the case of a

2 No. 2020AP1718-OA.rgb

pandemic, which lasts month after month, the Governor cannot

rely on emergency powers indefinitely."2

I

¶49 While this case may be resolved by applying the plain

language of the statute, the constitutional infirmities of

Governor Evers' interpretation of the law warrant discussion.

An understanding of the structure of our government is a

prerequisite to grasping the constitutional flaws in the

Governor's analysis. "Like its federal counterpart, '[o]ur

state constitution . . . created three branches of government,

each with distinct functions and powers,' and '[t]he separation

of powers doctrine is implicit in this tripartite division.'"

Gabler, 376 Wis. 2d 147, ¶11 (quoted source omitted; alterations

in original). "Three clauses of the Wisconsin Constitution

embody this separation [of powers]: Article IV, Section 1

('[t]he legislative power shall be vested in a senate and

assembly'); Article V, Section 1 ('[t]he executive power shall

be vested in a governor'); and Article VII, Section 2 ('[t]he judicial power . . . shall be vested in a unified court

system')." Id. (citation omitted).

¶50 Elected officials on whom the people have conferred

powers may not circumvent the constitutional confines of their

authority even if "they believe that more or different power is

necessary." A.L.A. Schechter Poultry Corp. v. United States,

295 U.S. 495, 529 (1935). This fundamental principle underlying

the foundation of our government prevails even in an emergency

2 2020 WI 42, ¶41, 391 Wis. 2d 497, 942 N.W.2d 900.

3 No. 2020AP1718-OA.rgb

because "[e]xtraordinary conditions do not create or enlarge

constitutional power." Id. at 528. Even in a pandemic, the

government "cannot be allowed to obscure the limitations of the

authority to delegate, if our constitutional system is to be

maintained." Id. at 530.

¶51 The Wisconsin Constitution prohibits unlawful

delegations of power among the branches as a bulwark for the

people. "By vesting certain powers exclusively within each of

the three co-equal branches of government, the drafters of the

Wisconsin Constitution recognized the importance of dispersing

governmental power in order to protect individual liberty and

avoid tyranny." League of Women Voters of Wis. v. Evers, 2019

WI 75, ¶31, 387 Wis. 2d 511, 929 N.W.2d 209 (citation omitted).

In specifying the powers of each branch, the constitution

prohibits one branch from assuming the powers of another and

also forbids one branch from ceding its own powers to another.

"The co-ordinate branches of the government . . . should not

abdicate or permit others to infringe upon such powers as are exclusively committed to them by the Constitution." Rules of

Court Case, 204 Wis. 501, 514, 236 N.W. 717 (1931). "Each

branch's core powers reflect 'zones of authority

constitutionally established for each branch of government upon

which any other branch of government is prohibited from

intruding. As to these areas of authority, . . . any exercise

of authority by another branch of government is

unconstitutional.'" Gabler, 376 Wis. 2d 147, ¶31 (quoting State

4 No. 2020AP1718-OA.rgb

ex rel. Fiedler v. Wisconsin Senate, 155 Wis. 2d 94, 100, 454

N.W.2d 770 (1990)) (ellipsis in original; emphasis omitted).

¶52 Because Wisconsin adopted a tripartite division of

powers between the executive, legislature, and judiciary modeled

after the United States Constitution, founding era principles

"inform our understanding of the separation of powers under the

Wisconsin Constitution." Id., ¶11. "The Founders designed a

Constitution to safeguard individual rights and liberty."

Koschkee v. Taylor, 2019 WI 76, ¶56, 387 Wis. 2d 552, 929

N.W.2d 600 (Rebecca Grassl Bradley, concurring). William

Blackstone——who "profoundly influenced" the Founders' conception

of the separation of powers——"defined a tyrannical government as

one in which 'the right both of making and of enforcing the

laws, is vested in one and the same man, or one and the same

body of men,' for 'wherever these two powers are united

together, there can be no public liberty.'" Dep't of Transp. v.

Ass'n of Am. Railroads, 575 U.S. 43, 73 (2015) (Thomas, J.,

concurring) (quoting 1 William Blackstone, Commentaries on the Laws of England 129, 134, 137-38 (1765)). "The Founders

recognized that maintaining the formal separation of powers was

essential to preserving individual liberty." Koschkee, 387

Wis. 2d 552, ¶51 (Rebecca Grassl Bradley, concurring).

This devotion to the separation of powers is, in part, what supports our enduring conviction that the Vesting Clauses are exclusive and that the branch in which a power is vested may not give it up or otherwise reallocate it. The Framers were concerned not just with the starting allocation, but with the "gradual concentration of the several powers in the same department." The Federalist No. 51, at 321 (J. Madison). 5 No. 2020AP1718-OA.rgb

Ass'n of Am. Railroads, 575 U.S. at 74 (Thomas, J., concurring).

¶53 The Framers "believed the new federal government's

most dangerous power was the power to enact laws restricting the

people's liberty." Gundy v. United States, 139 S. Ct. 2116,

2134 (2019) (Gorsuch, J., dissenting). With this in mind, the

Framers enshrined the separation of powers in our Constitution

in order to "preserve individual freedom." Olson, 487 U.S. at

727 (Scalia, J., dissenting); see also Ass'n of Am. Railroads,

575 U.S. at 75 (Thomas, J., concurring) ("At the center of the

Framers' dedication to the separation of powers was individual

liberty."). "No political truth is certainly of greater

intrinsic value, or is stamped with the authority of more

enlightened patrons of liberty" than the separation of powers.

The Federalist No. 47, at 301; see also The Federalist No. 51,

at 321-22 (James Madison) (Clinton Rossiter ed., 1961) ("[The]

separate and distinct exercise of the different powers of

government . . . is admitted on all hands to be essential to the

preservation of liberty."). Renouncing England's monarchical rule, the Framers adopted a structure under which the government

was accountable to the people; power would not go unchecked; and

citizens could "readily identify the source of

legislation . . . affect[ing] their lives." See Ass'n of Am.

Railroads, 575 U.S. at 57 (Alito, J., concurring). Absent this

structural separation of powers, Madison feared there would be

"gradual concentration of the several powers in the same

department." The Federalist No. 51, at 321-22.

6 No. 2020AP1718-OA.rgb

¶54 Acknowledging the dangers of accumulated power, the

Framers precluded each branch of government from delegating its

own vested powers. "By careful design," the Framers designed a

framework under which "[w]hen the Government is called upon to

perform a function that requires an exercise of legislative,

executive, or judicial power, only the vested recipient of that

power can perform it." Ass'n of Am. Railroads, 575 U.S. at 61,

68 (Thomas, J., concurring). In other words, given that "each

of these vested powers had a distinct content," the Framers

contemplated that each respective department——and only that

department——could carry out its constitutionally-conferred

powers. See Gundy, 139 S. Ct. at 2133 (Gorsuch, J.,

dissenting).

¶55 This case concerns the legislative function, and the

legislature's authority to transfer it to another branch of

government. "The people bestowed much power on the legislature,

comprised of their representatives whom the people elect to make

the laws." Gabler, 376 Wis. 2d 147, ¶60. Safeguarding constitutional limitations on the exercise of legislative power

is particularly important in light of its awesome sweep. "When

it came to the legislative power, the framers understood it to

mean the power to adopt generally applicable rules of conduct

governing future actions by private persons——the power to

'prescrib[e] the rules by which the duties and rights of every

citizen are to be regulated,' or the power to 'prescribe general

rules for the government of society.'" Gundy, 139 S. Ct. at 2133 (Gorsuch, J., dissenting) (citing The Federalist No. 78

7 No. 2020AP1718-OA.rgb

(Alexander Hamilton) and Fletcher v. Peck, 10 U.S. 87, 136

(1810)). In the Constitution, the "people had vested the power

to prescribe rules limiting their liberties in Congress alone"——

not the executive. Id. (citation omitted). As expressed by

John Locke, whose political philosophy greatly influenced the

Framers' formation of our Republic, "[t]he legislative cannot

transfer the power of making laws to any other hands; for it

being but a delegated power from the people, they who have it

cannot pass it over to others." John Locke, Second Treatise of

Civil Government § 141, at 71 (John Gough ed., 1947) (emphasis

added).

¶56 Because the people gave the legislature its power to

make laws, the legislature alone must exercise it. Our

constitutional structure confers no authority on any branch to

subdelegate any powers the sovereign people themselves delegated

to particular governmental actors. After all, "when the people

have said we will submit to rules, and be governed by laws made

by such men, and in such forms, nobody else can say other men shall make laws for them." Id. Any laws prescribed beyond the

constitutional lines of authority drawn by the people are

illegitimate: "nor can the people be bound by any laws but such

as are enacted by those whom they have chosen and authorised to

make laws for them." Id.

II

¶57 Although conflict between Governor Evers and the

legislature over the State's COVID-19 pandemic response is often presented as partisan in nature, this court's review is not.

8 No. 2020AP1718-OA.rgb

This court does not referee partisan battles; our duty is to

ensure that each branch of government respects the

constitutional limits of its authority. "[E]nforcing the

separation isn't about protecting institutional prerogative or

governmental turf. It's about respecting the people's sovereign

choice to vest the legislative power in Congress alone. And

it's about safeguarding a structure designed to protect their

liberties, minority rights, fair notice, and the rule of law."

Gundy, 139 S. Ct. at 2135 (Gorsuch, J., dissenting).

¶58 Just like the federal framework, Wisconsin's

Constitution protects against any of the three branches of

government abdicating their constitutionally-vested powers.

"[I]t is . . . fundamental and undeniable that no one of the

three branches of government can effectively delegate any of the

powers which peculiarly and intrinsically belong to that

branch." Rules of Court Case, 204 Wis. at 503. "Core powers,"

as this court has recognized, "are not for sharing." Tetra Tech

EC, Inc. v. DOR, 2018 WI 75, ¶47, 382 Wis. 2d 496, 914 N.W.2d 21. Nevertheless, this court has upheld delegations of

legislative power to the executive, provided there are "adequate

procedural safeguards" in place to limit executive overreach.3

¶59 Relying on the procedural safeguard embodied in Wis.

Stat. § 323.10, which empowers the legislature to revoke the

governor's declared state of emergency by joint resolution,

3Watchmaking Examining Bd. v. Husar, 49 Wis. 2d 526, 536, 182 N.W.2d 257 (1971); Westring v. James, 71 Wis. 2d 462, 468, 238 N.W.2d 695 (1976); Gilbert v. State, Med. Examining Bd., 119 Wis. 2d 168, 186, 349 N.W.2d 68 (1984).

9 No. 2020AP1718-OA.rgb

Governor Evers initially argued that "[i]t cannot possibly be

that when the Legislature explicitly has the final say on the

matter, it has given away too much power." Dismissing the

petitioner's concern over the prospect of the governor promptly

declaring a new state of emergency upon the legislature's

revocation of the prior one as "rank speculation," the Governor

himself acknowledged that "such a scenario" "may very well

implicate separation of powers problems." Citing Panzer v.

Doyle,4 Governor Evers further conceded that declaring a new

state of emergency after the legislature revoked the prior one

"may be circumventing the procedural safeguards that insure that

delegated power may be curtailed or reclaimed by future

legislative action" warranting the successive declaration of a

state of emergency "be struck down."

¶60 That was the Governor's argument in November 2020. On

February 4, 2021, the legislature passed a joint resolution

revoking Governor Evers' fifth order declaring a state of

emergency related to the COVID-19 pandemic. That very day, the Governor declared another one, casting aside the very procedural

safeguard he invoked to validate the legislature's delegation of

emergency management power. In response to the petitioner's

motion for injunctive relief, the Governor asserted a new basis

for his latest emergency order——Wisconsin's potential loss of

emergency FoodShare funds——the preservation of which ostensibly

requires a state of emergency order. Characterizing the

deprivation of food assistance as a disaster distinct from the

4 2004 WI 52, 271 Wis. 2d 295, 680 N.W.2d 666.

10 No. 2020AP1718-OA.rgb

COVID-19 pandemic, the Governor neglects to explain how the

face-covering mandate in his latest order bears any relationship

to food assistance for Wisconsin citizens. When the legislature

passed a bill granting the Governor the power to declare a

public health emergency for the sole purpose of preserving

Wisconsin's entitlement to FoodShare funds as well as other

emergency allotments, the Governor vetoed it.5 The Governor

justified the veto, at least in part, based on the limits the

bill imposed on the ability of his administration to control

public gatherings. The Governor's actions illustrate why this

court "must be assiduous in patrolling the borders between the

branches. This is not just a practical matter of efficient and

effective government. We maintain this separation because it

provides structural protection against depredations on our

liberties." Tetra Tech EC, 382 Wis. 2d 496, ¶45.

III

¶61 Although Governor Evers' violation of Wis. Stat.

§ 323.10's procedural safeguards suffices to strike down his declarations of successive states of emergency after May 11,

2020, the procedural safeguards test is a judicial invention,

existing in tension with the constitution's clearly demarcated

separation of powers among the branches. Over time, this court

5 Wis. Assem. 2, to Senate Am. 1, to Assem. Am. 1, to Senate Substitute Am. 1, to Assem B. (Jan. 28, 2021), available at https://docs.legis.wisconsin.gov/2021/related/amendments/ab1/aa2 _sa1_aa1_ssa1_ab1.

Governor Tony Evers, Governor's Veto Message (Feb. 5, 2021), available at https://docs.legis.wisconsin.gov/2021/ related/journals/assembly/20210205efe1/_70.

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has loosened the constitutional limits on delegating legislative

power to the executive branch. The constitutionally-grounded

doctrine of nondelegation morphed into a doctrine of delegation

within limits drawn by the judiciary, rather than the people.

In this regard, Wisconsin's jurisprudence followed the federal

path. The history is readily traceable.

¶62 In the early days of our Republic, the United States

Supreme Court succinctly articulated the separation of powers:

"the legislature makes, the executive executes, and the

judiciary construes the law." Wayman v. Southard, 23 U.S. 1, 22

(1825). By 1928, the Court discarded these first principles in

favor of the "intelligible principle" test: "If Congress shall

lay down by legislative act an intelligible principle to which

the person or body authorized to [exercise delegated power] is

directed to conform, such legislative action is not a forbidden

delegation of legislative power." J.W. Hampton, Jr., & Co. v.

United States, 276 U.S. 394, 409 (1928). Although this rule

remains in place, see Gundy, 139 S. Ct. at 2123, it is quite apparent that it supplanted the Constitution's separation of

powers.

¶63 The Constitution "contain[s] a discernible, textually

grounded non-delegation principle that is far removed from the

modern doctrine." Gary Lawson, Delegation and Original Meaning,

88 Va. L. Rev 327, 333 (2002). "[T]he Constitution does not

speak of 'intelligible principles.' Rather, it speaks in much

simpler terms: 'All legislative Powers herein granted shall be vested in a Congress.'" Whitman v. American Trucking Ass'ns,

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Inc., 531 U.S. 457, 487 (2001) (Thomas, J., concurring). As

some members of the current Court have recently recognized,

"[i]f Congress could pass off its legislative power to the

executive branch, the vesting clauses and indeed the entire

structure of the Constitution, would make no sense." Gundy, 139

S. Ct. at 2134-35 (Gorsuch, J., dissenting). If Congress could

permissibly delegate its vested powers, "legislation would risk

becoming nothing more than the will of the current President."

Id. at 2135. Departures from the nondelegation doctrine reflect

each branch's willingness to "abandon openly a substantial

portion of the foundation of American representative

government." Lawson, supra, at 332.

¶64 In the early years of Wisconsin's statehood, this

court understood that the three branches of government could not

delegate their vested powers, imposing substantive limitations

on the legislature's assignment of authority to the executive to

carry out the legislature's policies. In Dowling, this court

declared "a law must be complete, in all its terms and provisions, when it leaves the legislative branch of the

government, and nothing must be left to the judgment of the

electors or other appointee or delegate of the legislature."

Dowling v. Lancashire Ins. Co., 92 Wis. 63, 65 N.W. 738, 741

(1896) (emphasis added). However, in the wake of the

Progressive era, this court began to uproot substantive limits

on the legislature's delegation of its constitutionally-

conferred powers, thereby damaging the "foundation of American

13 No. 2020AP1718-OA.rgb

representative government" that is the separation of powers.

Lawson, supra, at 332.

¶65 As is often the justification for casting aside

constitutional principles, this court abandoned the

nondelegation doctrine in the name of "necessity." In 1928,

conterminously with the United States Supreme Court, this court

explained that "courts, Legislatures, and executives, as well as

students of the law, agree, . . . that there is an overpowering

necessity for a modification of the doctrine of separation and

non-delegation of powers of government." State v. Whitman, 196

Wis. 472, 220 N.W. 929, 941 (1928). Eviscerating the Wisconsin

Constitution's separation of powers, the Whitman court held that

the legislature "may delegate" to agencies "the authority to

exercise such legislative power as is necessary to carry into

effect the general legislative purpose." Id. Gone was any

substantive limit on the legislature's delegation of authority;

the legislature could now delegate its legislative powers so

long as the court agreed it was necessary to carry out the legislative purpose. Of course, neither branch sought nor

obtained the people's consent to this brazen rewriting of the

constitution.

¶66 Whitman ushered in a new era for this court's ever-

evolving abandonment of non-delegation principles. Forty years

thereafter, this court approved any delegating statute merely

"if the purpose of the delegating statute is ascertainable and

there are procedural safeguards to insure that the board or agency acts within that legislative purpose." Watchmaking

14 No. 2020AP1718-OA.rgb

Examining Bd. v. Husar, 49 Wis. 2d 526, 536, 182 N.W.2d 257

(1971). The court reiterated this position five years later,

upholding "broad grants of legislative powers . . . where there

are procedural and judicial safeguards against arbitrary,

unreasonable, or oppressive conduct of the agency." Westring v.

James, 71 Wis. 2d 462, 468, 238 N.W.2d 695 (1976). Over the

ensuing decades, the court fortified its deviation from first

principles, continuing to uphold "broad grants of legislative

powers." In Gilbert, this court acknowledged that throughout

the "evolution of the delegation of legislative power"

effectuated by the judiciary, it has "take[n] a more liberal

attitude toward delegations of legislative authority." Gilbert

v. State, Med. Examining Bd., 119 Wis. 2d 168, 186, 349

N.W.2d 68 (1984). More accurately, the constitution's

substantive limitations on delegating authority are all but

dead. In their place survives judicial complacence with

transfers of legislative power, "[s]o long as there are adequate

procedural safeguards" in place to limit executive overreach. Id.

¶67 Proposals to reinvigorate the nondelegation doctrine

are often met with warnings about the adverse impact on the

government's ability to operate efficiently. Governmental

efficiency can never be allowed to trump the people's liberty.

As Madison noted, "the separate and distinct exercise of

government . . . [is] essential to the preservation of liberty."

The Federalist No. 51, at 321 (emphasis added). As reflected in Madison's enduring words, and consistent with the plain text and

15 No. 2020AP1718-OA.rgb

original meaning of the United States and Wisconsin

Constitutions, the legislature may not delegate its vested

powers to the executive.

¶68 Reviving the nondelegation doctrine would restore the

original understanding of the constitutional grants of

authority; they "'are exclusive,' which means 'only the vested

recipient of that power can perform it.'" Koschkee, 387

Wis. 2d 552, ¶47 (Rebecca Grassl Bradley, concurring) (citing

Ass'n of Am. Railroads, 575 U.S. at 67 (Thomas, J.,

concurring)). Following the Framers' model, the Wisconsin

Constitution ensures this "separation of powers 'operate[s] in a

general way to confine legislative powers to the legislature.'"

Id. (citation omitted) (emphasis added). "[E]ver vigilant in

averting the accumulation of power by one body——a grave threat

to liberty——the people devised a diffusion of governmental

powers. These powers may not be claimed by another branch."

Gabler, 376 Wis. 2d 147, ¶60.

IV ¶69 In this case, the court appropriately applies the

plain language of the statute to overturn executive overreach.

Governor Evers' interpretation of his emergency management

powers would render Wis. Stat. § 323.10 unconstitutional.

According to the Governor, the legislature gave the executive

the unilateral authority to declare successive states of

emergency, based upon the same underlying cause, with no

prescribed end date, and without the approval (much less the input) of the legislature. During a declared state of

16 No. 2020AP1718-OA.rgb

emergency, Wis. Stat. § 323.12 gives the Governor the

extraordinary power to "[i]ssue such orders as he [] deems

necessary for the security of persons and property."

§ 323.12(4)(b). Under the Governor's reading, if the Governor

wills it, then so it shall be——for as long as the Governor alone

decrees a public health emergency exists. Such a grant of

plenary legislative power could not survive even cursory

constitutional scrutiny.

¶70 The people of Wisconsin gave the power to legislate to

the legislature alone. Accordingly, "a law must be complete, in

all its terms and provisions, when it leaves the legislative

branch or the government, and nothing must be left to the

judgment of the electors or other appointee or delegate of the

legislature." Dowling, 92 Wis. at 65. Governor Evers'

construction of Wis. Stat. § 323.10 would leave the exercise of

extraordinary power entirely to the judgment of the executive,

unlimited in duration. As the Governor would have it, so long

as he alone thinks the cause of a public health emergency persists, he retains the unchecked power to keep Wisconsin in a

perpetual state of emergency, leaving the individual liberties

preserved by the people at the birth of our nation and at the

founding of our state to the whim of a single executive.

"Freedom of men under government," as John Locke wrote, "is to

have a standing rule to live by, common to every one of that

society, and made by the legislative power erected in

it . . . and not subject to the inconstant, uncertain, unknown, arbitrary will of another man." Ass'n of Am. Railroads, 575

17 No. 2020AP1718-OA.rgb

U.S. at 72-73 (Thomas, J., concurring) (quoting John Locke,

Second Treatise of Civil Government § 22, at 13 (John Gough ed.,

1947)). If the legislature had actually abdicated its vested

powers to the executive, as the Governor would have it, the

people of Wisconsin would be subject to the arbitrary will of a

single man. The Wisconsin Constitution does not countenance

such a consolidation of extraordinary power.

¶71 Under Governor Evers' interpretation, the

constitutional separation of powers between the executive and

legislative branches would collapse for the duration of any

public health emergency. Every 60 days, so long as the

underlying cause of the emergency persists, the executive could

declare another state of emergency, granting the Governor the

extraordinary powers delineated in Wis. Stat. § 323.12——

indefinitely. Such unilateral, unchecked power was anathema to

the framers of our constitutions.

By separating the lawmaking and law enforcement functions, the framers sought to thwart the ability of an individual or group to exercise arbitrary or absolute power. And by restricting lawmaking to one branch and forcing any legislation to endure bicameralism and presentment, the framers sought to make the task of lawmaking more arduous still. United States v. Nichols, 784 F.3d 666, 670 (10th Cir. 2015)

(Gorsuch, J., dissenting). While some may find the limitations

on the Governor's power frustrating, particularly in the midst

of a pandemic, those limitations exist to protect our liberty.

"Admittedly, the legislative process can be an arduous one. But that's no bug in the constitutional design: it is the very

point of the design." Gutierrez-Brizuela v. Lynch, 834 F.3d 18 No. 2020AP1718-OA.rgb

1142, 1151 (10th Cir. 2016) (Gorsuch, J., concurring). Escaping

the imposition of a single ruler's dictates on the people

impelled the founding fathers to risk their lives, their

fortunes, and their sacred honor in 1776.6

* * *

¶72 "In America THE LAW IS KING! For as in absolute

governments the king is law, so in free countries the law ought

to be king; and there ought to be no other." Thomas Paine,

Common Sense (1776). In Wisconsin, the legislature empowered

the governor to respond to a public health emergency.

Statutorily, those powers "shall not exceed 60 days, unless the

state of emergency is extended by joint resolution of the

legislature." Wis. Stat. § 323.10. In response to the COVID-19

pandemic, Governor Evers declared a state of emergency on March

12, 2020. The legislature never extended it. Accordingly, any

orders issued by the Governor more than 60 days thereafter are

unlawful and void. While a pandemic will not follow the laws of

men, the Governor must. I respectfully concur. ¶73 I am authorized to state that Chief Justice PATIENCE

DRAKE ROGGENSACK joins this concurrence.

6See Declaration of Independence (U.S. 1776) ("And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.").

19 No. 2020AP1718-OA.awb

¶74 ANN WALSH BRADLEY, J. (dissenting). This is no run-

of-the-mill case. We are in the midst of a worldwide pandemic

that so far has claimed the lives of over a half million people

in this country. And with the stakes so high, the majority not

only arrives at erroneous conclusions, but it also obscures the

consequence of its decision.1 Unfortunately, the ultimate

consequence of the majority's decision is that it places yet

another roadblock to an effective governmental response to

COVID-19, further jeopardizing the health and lives of the

people of Wisconsin.

¶75 First, the majority errs by granting taxpayer standing

to Fabick on a conjured justification neither briefed nor argued

by any party. In essence, the product of this new theory

results in a standard so low that all that is needed for

taxpayer standing in this court is a song and a whistle with an

ability to produce a melody appealing to at least four justices.

¶76 Such an institutional injury alone should be

sufficient to cause the majority to pause. Yet, in support of its new theory it proceeds to cause further institutional damage

by sub silentio overruling more than a century of taxpayer

standing cases.

¶77 Second, the majority errs by purporting to engage in a

straightforward statutory analysis. Yet, it omits any analysis

of an essential word in Wis. Stat. § 323.02(16) that is outcome

determinative. Left unanalyzed is the statutory term

1The majority's entire discussion of the consequence is tucked away in a one sentence footnote towards the end of the opinion. See majority op., ¶43 n.19.

1 No. 2020AP1718-OA.awb

"occurrence," which when included in the analysis, proves to

undermine the majority's conclusion and mandates a contrary

result.

¶78 In a final flourish of judicial immodesty, the

majority goes beyond the relief requested and declares Executive

Order #105 unlawful with scant analysis and without candid

justification. Obscuring the fact that Fabick did not move for

the relief it grants, the majority reaches out and strikes down

Order #105 even though that order is not properly before the

court.

¶79 Contrary to the majority's conclusions, I determine

that because Fabick and the State of Wisconsin suffer no

pecuniary loss whatsoever, Fabick fails to meet the condition

necessary for asserting taxpayer standing. Without taxpayer

standing, this case simply can no longer be maintained.

¶80 Further, I conclude that Executive Orders #82 and #90

are premised on statutory occurrences that are distinct from

each other and from that relied upon for Executive Order #72. Therefore, they are permissible pursuant to the Governor's

authority under Wis. Stat. § 323.10.

¶81 Finally, I would deny Fabick's motion to temporarily

enjoin Order #105. In addition to Order #105 not being properly

before the court and Fabick's lack of standing to challenge it,

the majority's conclusion regarding Order #105 finds no textual

support.

¶82 Accordingly, I respectfully dissent.

2 No. 2020AP1718-OA.awb

¶83 Since its emergence in late 2019, COVID-19 has quickly

and devastatingly enveloped the globe, and Wisconsin has been

ravaged with high case counts and tragic deaths. As of this

writing, over 27,000 Wisconsinites have been hospitalized and

over 6,500 have died.2 The emergencies presented by the arrival

and spread of COVID-19 have spurred the Governor to issue

several executive orders declaring various states of emergency.

¶84 On March 12, 2020, recognizing the danger of the

spread of COVID-19 around the world and seeing a need "to

prepare for the impacts [the virus] may have on the state[,]"

Governor Tony Evers issued Executive Order #72. This order,

among other things, declared a public health emergency in the

state and designated the Department of Health Services (DHS) as

the lead agency to respond.

¶85 Neither the legislature nor the Governor revoked this

order prior to its expiration 60 days later, on May 11, 2020.3

Upon the expiration of Order #72, the Governor declared no state of emergency for the next 79 days despite the continuing

presence of COVID-19 in Wisconsin.

¶86 The Governor waited until July 30, 2020, and then

declared a new state of emergency, in the form of Executive

Wisconsin 2 Department of Health Services, COVID-19: Wisconsin Summary Data, https://www.dhs.wisconsin.gov/covid- 19/data.htm#summary (last visited Mar. 29, 2021).

See Wis. Stat. § 323.10 ("The executive order may be 3

revoked at the discretion of either the governor by executive order or the legislature by joint resolution.").

3 No. 2020AP1718-OA.awb

Order #82, in response to a "new and concerning spike in

infections." Again, neither the Governor nor the legislature

revoked Order #82, and it expired on September 28, 2020.

¶87 However, six days before Order #82 was to expire, the

Governor issued Executive Order #90 declaring a new public

health emergency, this time in response to the significant

increase in the spread of COVID-19 due to the beginning of the

K-12 and collegiate school years. Once again, the legislature

did not revoke Order #90.

¶88 With the legislature declining to act, and in so doing

tacitly acquiescing to the Governor's orders,4 Fabick, a single

Wisconsin resident, filed suit as a taxpayer. He brought his

suit as an original action before this court, arguing that the

Governor lacks the statutory authority to declare successive

states of emergency "arising from the same public health

emergency." He acknowledges, however, that in certain

circumstances, the Governor can make such a declaration for a

different COVID-19 related public health emergency. With regard to standing, Fabick contended that he has standing to maintain

this action as a taxpayer because the Governor utilized

government funds in drafting, promoting, and enforcing Orders

#82 and #90.

Curiously, although it has the authority to act to end a 4

state of emergency at any time, see Wis. Stat. § 323.10, the legislature chose not to do so with either Order #82 or Order #90 and instead filed an amicus brief in this court in support of Fabick's position.

4 No. 2020AP1718-OA.awb

¶89 Right off the bat, the majority makes a fundamental

error, allowing Fabick to maintain this action despite his lack

of standing. In doing so, it sub silentio overrules over a

century of precedent requiring that there be some pecuniary loss

in order for taxpayer standing to be established.

¶90 Why is standing so important? In answering that

question, a review of the "cases and controversies" clause of

the United States Constitution is informative. See U.S. Const.

art. III, § 2. Although not binding on state court

jurisdiction, the United States Supreme Court has generally

interpreted this provision to define the proper role of the

judiciary as limited to deciding only "cases and controversies."5

¶91 As this court has done, the United States Supreme

Court has emphasized that courts are not to hand out advisory

opinions on some future hypothetical case. Chafin v. Chafin,

568 U.S. 165, 172 (2013); State v. Grandberry, 2018 WI 29, ¶31

n.20, 380 Wis. 2d 541, 910 N.W.2d 214. The cases and controversies must be actual.

¶92 Likewise, Article III, Section 2 circumscribes who can

maintain a court action. Courts are not to entertain cases from

parties who do not have a legally recognized interest in the

The Supreme Court has observed that "[n]o principle is 5

more fundamental to the judiciary's proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies." Raines v. Byrd, 521 U.S. 811, 818 (1997). The case-or-controversy requirement of Article III requires plaintiffs to establish their standing to sue. Id. (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)).

5 No. 2020AP1718-OA.awb

case. See DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342

(2006). That legally recognized interest is called "standing."

Thus, standing is important both in federal court and Wisconsin

courts because it reins in unbridled attempts to go beyond the

circumscribed boundaries that define the proper role of courts.

¶93 Fabick seeks standing here as a taxpayer. He claims

that he has standing simply because government employees thought

about and implemented Orders #82 and #90 on government time.

¶94 Taxpayer standing is broad, but it is not limitless.

See S.D. Realty Co. v. Sewerage Comm'n of City of Milwaukee, 15

Wis. 2d 15, 21-22, 112 N.W.2d 177 (1961). It is well settled in

Wisconsin that "[i]n 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 . . . ." Id. at 21. Such a principle is not new.

¶95 The lineage of the "pecuniary loss" requirement can be

traced back over a century. Acknowledging this settled

requirement for taxpayer standing, the S.D. Realty court cited McClutchey v. Milwaukee County, 239 Wis. 139, 140, 300 N.W. 224,

(1941). S.D. Realty Co., 15 Wis. 2d at 21-22. McClutchey, in

turn, cites a long list of cases dating back to 1914. See Kasik

v. Janssen, 158 Wis. 606, 609, 149 N.W. 398 (1914) ("There is

therefore no ground for the maintenance of a taxpayer's suit.

Equity does not interfere with the rules or orders of an

administrative officer at the suit of a taxpayer, unless the

6 No. 2020AP1718-OA.awb

taxpayer and his class have sustained or will sustain some

pecuniary loss therefrom.").6

¶96 Fabick's argument contains no limiting principle at

all and renders the doctrine of standing purely illusory. Under

Fabick's rationale, any person could challenge any governmental

action. This is not the law, nor should it be. For standing

requirements to have any meaning, Fabick's standing must be

denied.

¶97 Ignoring our long-established case law, the majority,

however, determines that Fabick has standing to maintain his

claim as a taxpayer despite his failure to establish any

pecuniary loss whatsoever either to himself or to taxpayers as a

whole. Majority op., ¶11. The majority arrives at its

erroneous determination that Fabick has standing by conjuring

its own justification, neither argued nor briefed by any party.

Namely, it relies on state expenditures of taxpayer funds for

deployment of the National Guard pursuant to the subject

emergency declarations. Id. However, recent events significantly undermine the majority's summoned rationale.

¶98 On January 21, 2021, the new presidential

administration issued an executive order instituting full

federal reimbursement to states for National Guard expenses due

6 See also Berger v. City of Superior, 166 Wis. 477, 166 N.W. 36 (1918); Murphy v. Paull, 192 Wis. 93, 212 N.W. 402 (1927); Milwaukee Horse & Cow Comm'n Co. v. Hill, 207 Wis. 420, 241 N.W. 364 (1932); Stuart v. City of Neenah, 215 Wis. 546, 255 N.W. 142 (1934).

7 No. 2020AP1718-OA.awb

to COVID-19 going forward.7 Then on February 2, 2021, it

extended such reimbursement to states for 100 percent of

expenses incurred in mobilizing the National Guard to address

COVID-19, both going forward and retroactively.8

¶99 Full retroactive reimbursement makes the majority's

reliance on state-incurred National Guard expenses to establish

Fabick's taxpayer standing untenable. Indeed, with this federal

policy change, no state funds at all will be expended for

National Guard deployment. None. Zero. Thus, the majority

cannot persuasively rely on such an expenditure to establish

Fabick's standing.

¶100 The majority recognizes this change in federal policy,

but does not take it at face value, instead determining that

"[t]he imminent threat of unreimbursed costs, past and future,

is sufficient to confer taxpayer standing on Fabick . . . ."

Majority op., ¶11 n.5. It cites Warden v. Hart, 162 Wis. 495,

497, 156 N.W. 466 (1916), for the proposition that a taxpayer

7Memorandum to Extend Federal Support to Governors' Use of the National Guard to Respond to COVID-19 and to Increase Reimbursement and Other Assistance Provided to States, https://www.whitehouse.gov/briefing-room/presidential- actions/2021/01/21/extend-federal-support-to-governors-use-of- national-guard-to-respond-to-covid-19-and-to-increase- reimbursement-and-other-assistance-provided-to-states/ (Jan. 21, 2021). 8FACT SHEET: President Biden Announces Increased Vaccine Supply, Initial Launch of the Federal Retail Pharmacy Program, and Expansion of FEMA Reimbursement to States, https://www.whitehouse.gov/briefing-room/statements- releases/2021/02/02/fact-sheet-president-biden-announces- increased-vaccine-supply-initial-launch-of-the-federal-retail- pharmacy-program-and-expansion-of-fema-reimbursement-to-states/ (Feb. 2, 2021).

8 No. 2020AP1718-OA.awb

has standing when the taxpayer is merely "threatened with" a

pecuniary loss.

¶101 But Warden, the only taxpayer standing case the

majority cites in support, cannot be stretched this far. In

Warden, the plaintiff sought to enjoin the excavation of a

public street that had been planned and permitted. Id. The

threat of injury was real and immediate.

¶102 In this case, however, there is no such real and

immediate threat of pecuniary loss. On what is this "imminent

threat" based, other than the majority's whimsical musing that

the federal government may not do what it has said it will do?

Such rank speculation underscores the majority's tenuous search

for a viable theory upon which to justify the continuation of

this action. Speculation of this ilk cannot, however, create an

actual case or controversy and surely does not support Fabick's

standing to maintain this case.

¶103 A party may have standing at the beginning of a case

and then lose it as the case progresses. See, e.g., Craig v. Boren, 429 U.S. 190, 192 (1976); Kurtz v. Clark, 290 P.3d 779,

784 (Okla. Civ. App. 2012). The S.D. Realty court compared

taxpayer standing to shareholder standing: "[A] taxpayer does

have a financial interest in public funds which is akin to that

of a stockholder in a private corporation." S.D. Realty Co., 15

Wis. 2d at 22. And Northern Air Services, Inc. v. Link, 2011 WI

75, ¶83, 336 Wis. 2d 1, 804 N.W.2d 458, makes clear that if you

no longer own shares of stock, you no longer have standing to

9 No. 2020AP1718-OA.awb

maintain a shareholder action.9 The same principle should apply

here.

¶104 Accordingly, even assuming Fabick had standing to

bring this action in the first instance, he certainly has lost

it due to the new policy of 100 percent federal reimbursement

for states' National Guard expenses. In its quest to get its

teeth into this dispute, the majority ignores this fundamental

deficiency in allowing Fabick's case to proceed.

¶105 The effect of the majority's standing analysis is not

limited only to this and future taxpayer cases, but it

necessarily affects the vitality of our past precedents.

Indeed, what of the "pecuniary loss" requirement to which we

have adhered for over a century? Without saying a word about

it, the majority appears to overrule a multitude of cases10 and

ignores our well-established precedent which requires a taxpayer

to establish some sort of pecuniary loss to maintain standing.

Because Fabick is unable to meet this requirement, I conclude

that he lacks standing to maintain this action.

9 See N. Air Servs., Inc. v. Link, 2011 WI 75, ¶83, 336 Wis. 2d 1, 804 N.W.2d 458 ("On June 30, 2009, when Jay surrendered his shares in Link Snacks under the Buy-Sell Agreement, he was no longer a 'shareholder' in Link Snacks, as that term is defined by the Wisconsin Business Corporation Law. Consequently, Jay no longer has standing to maintain an oppression claim under Wis. Stat. § 180.1430(2)(b)."). 10 See, e.g., Kasik v. Janssen, 158 Wis. 606, 149 N.W. 398 (1914); Berger, 166 Wis. 477; Murphy, 192 Wis. 93; Milwaukee Horse & Cow Comm'n Co., 207 Wis. 420, Stuart, 215 Wis. 546; McClutchey v. Milwaukee Cnty., 239 Wis. 139, 300 N.W. 224 (1941); S.D. Realty Co. v. Sewerage Comm'n of City of Milwaukee, 15 Wis. 2d 15, 112 N.W.2d 177 (1961).

10 No. 2020AP1718-OA.awb

¶106 The majority also errs in its interpretation of the

plain language of the relevant statutes, Wis. Stat.

§§ 323.02(16) and 323.10. When properly focused on the actual

words of these statutes, the plain language does not support the

majority's interpretation. Rather, a plain language analysis

establishes that emergency declarations are permissible when,

like the orders at issue here, they are based on separate

statutory "occurrences," even if those occurrences share the

same underlying cause.

¶107 The majority misses the mark when it fails to

recognize that the key word for analysis in this case lies in

the statutory definition of a "public health emergency" provided

by Wis. Stat. § 323.02(16). That key word is "occurrence."

Instead, the majority puts on blinders and does not engage with

the term at all.

¶108 Legally speaking, this case presents a straightforward

issue of statutory interpretation. "Statutory language is given its common, ordinary, and accepted meaning, except that

technical or specially-defined words or phrases are given their

technical or special definitional meaning." State ex rel. Kalal

v. Circuit Court for Dane Cnty., 2004 WI 58, ¶45, 271

Wis. 2d 633, 681 N.W.2d 110. We interpret statutory language

"in the context in which it is used; not in isolation but as

part of a whole; in relation to the language of surrounding or

closely-related statutes; and reasonably, to avoid absurd or unreasonable results." Id., ¶46.

11 No. 2020AP1718-OA.awb

¶109 There are two statutes relevant to the analysis, Wis.

Stat. §§ 323.02(16) and 323.10. Section 323.10 sets forth the

Governor's authority to declare a state of emergency. It

provides in relevant part:

If the governor determines that a public health emergency exists, he or she may issue an executive order declaring a state of emergency related to public health for the state or any portion of the state and may designate the department of health services as the lead state agency to respond to that emergency. . . . A state of emergency shall not exceed 60 days, unless the state of emergency is extended by joint resolution of the legislature. . . . The executive order may be revoked at the discretion of either the governor by executive order or the legislature by joint resolution. ¶110 As a starting point, the emergency declarations at

issue in this case arise from a "public health emergency," as

the majority agrees. Majority op., ¶24. Thus, my focus zeroes

in on that term as we examine: what is a public health

emergency?

¶111 This is where Wis. Stat. § 323.02(16) joins the

equation. Indeed, "public health emergency" is a defined term pursuant to that statute. It means "the occurrence or imminent

threat of an illness or health condition that . . . [i]s

believed to be caused by . . . a novel or previously controlled

or eradicated biological agent." § 323.02(16). The statute

further defines a "public health emergency" as requiring that

the occurrence or threat poses a high probability of either "[a]

large number of deaths or serious or long-term disabilities

among humans" or "[a] high probability of widespread exposure to a biological, chemical, or radiological agent that creates a

12 No. 2020AP1718-OA.awb

significant risk of substantial future harm to a large number of

people." Id.

¶112 Without further interpretation, the definition of

public health emergency by itself does not resolve our inquiry.

This statutory definition of "public health emergency" turns on

whether there is an "occurrence" or a "threat" of an illness or

health condition that fulfills the statutory criteria. Thus, a

"public health emergency" may be declared either upon the

occurrence or upon the imminent threat of an illness or health

condition.

¶113 I focus on the term "occurrence" rather than "threat"

because Orders #82 and #90 were issued in response to

"occurrences" that have already taken place. The new spike in

infections drove Order #82 and Order #90 was issued because of

the significant increase in the spread of the virus occasioned

by the beginning of the school year.11

11The majority mischaracterizes this dissent as "ignor[ing] that a 'public health emergency' may be declared upon either 'the occurrence or imminent threat of an illness or health condition.'" Majority op., ¶23 n.7. As explained above, I focus on the term "occurrence" rather than "threat" simply because Orders #82 and #90 were issued in response to "occurrences" that have already taken place. If anything, the inclusion of "threat" in addition to "occurrence" broadens the circumstances under which a public health emergency may be declared.

Further, the majority decries the fact that "occurrence" does not appear in Wis. Stat. § 323.10. Id. True enough. But it does appear in Wis. Stat. § 323.02(16), and there is a straight line between the two statutes. Section 323.10 includes the phrase "public health emergency," which is in turn defined by § 323.02(16) to include an "occurrence." The connection is not hard to follow.

13 No. 2020AP1718-OA.awb

¶114 In the absence of any statutory definition, and

without any case law interpreting the term "occurrence" in the

context of Wis. Stat. § 323.02(16), our task is to determine its

common, ordinary, and accepted meaning. Kalal, 271 Wis. 2d 633,

¶45. A dictionary may aid us in our interpretation, so that is

where I begin.12

¶115 A commonly accepted dictionary defines "occur" as "to

take place" or "come about."13 We need not look far to find an

application of a highly similar definition in our case law, as

this court has previously stated that the "ordinary and common

meaning of 'occurrence' is 'something that takes place;

something that happens unexpectedly and without design.'"

Kremers-Urban Co. v. Am. Emp.'s Ins. Co., 119 Wis. 2d 722, 741,

351 N.W.2d 156 (1984); see Kalal, 271 Wis. 2d 633, ¶45

(explaining that statutory language is given "its common,

ordinary, and accepted meaning"). Contrary to the majority's

overly simplistic view, "occurrence" is a very broad term.

Nothing about this definition leads to the conclusion that an "occurrence" coincides with the first appearance of a disease

only.

¶116 Applying our established definition of "occurrence" to

Orders #82 and #90, it is apparent that each is based on a new

See State v. Sample, 215 Wis. 2d 487, 499, 573 N.W.2d 187 12

(1998) ("For purposes of statutory interpretation or construction, the common and approved usage of words may be established by consulting dictionary definitions.").

Occur, American Heritage Dictionary of the English 13

Language, https://www.ahdictionary.com/word/search.html?q=occur (last visited Mar. 29, 2021).

14 No. 2020AP1718-OA.awb

set of on-the-ground facts, with each new set of facts posing a

high probability of either "[a] large number of deaths or

serious or long-term disabilities among humans" or "[a] high

probability of widespread exposure to a biological . . . agent

that creates a significant risk of substantial future harm to a

large number of people." See Wis. Stat. § 323.02(16). Thus,

the orders were issued in response to separate occurrences and

are permissible under the plain language of §§ 323.02(16)

and 323.10.

¶117 Unlike Order #72, which was premised on preparing

Wisconsin for the fight against COVID-19, Order #82 declared a

new public health emergency in response to a "new and concerning

spike in infections" that without quick intervention "will lead

to unnecessary serious illness or death, overwhelm our

healthcare system, prevent schools from fully reopening, and

unnecessarily undermine economic stability . . . ." Order #82

detailed that "on June 1, 2020, there were 18,543 confirmed

cases of COVID-19 in Wisconsin; on July 1, 2020, there were 29,199 confirmed cases of COVID-19, a 57 percent increase from

June 1; and on July 29, 2020, there were 51,049 confirmed cases

of COVID-19, a 75 percent increase from July 1."

¶118 Accordingly, Order #82 was issued in response to a

specific and discrete occurrence. The "new and concerning spike

in infections" is certainly "something that takes place" that

poses a high probability of widespread transmission risking

future harm to a large number of people, i.e. an occurrence

15 No. 2020AP1718-OA.awb

separate and apart from the need to prepare for COVID-19's

impact that drove Order #72.

¶119 Likewise, Order #90 was issued in response to a

different specific and discrete occurrence. It was premised on

facts indicating that COVID-19's "exponential growth is being

driven by new factors not present before, primarily the

significant increase in spread due to the beginning of the K-12

and collegiate school years, which all began on or about

September 1, and the unprecedented number of infections among

18-24 year-olds . . . ." Again, the increase in spread due to

the beginning of the school year is "something that takes place"

that poses a high probability of widespread exposure that

threatens broad swaths of Wisconsinites, i.e. an occurrence

separate and apart from the occurrences cited in Orders #72 and

#82.

¶120 While COVID-19 may be the underlying cause of the

conditions that gave rise to Orders #72, #82, and #90, the

disease itself is not the statutory "occurrence" on which the orders are premised. In other words, the "occurrence"

underlying each subject order is not the pandemic itself, but

conditions that the pandemic has caused.

¶121 At oral argument, Fabick acknowledged the correctness

of such a proposition, undercutting his argument that there

cannot be another public health emergency declared due to the

COVID-19 pandemic. In response to a question from the court

regarding whether hospitals being overrun could constitute a separate occurrence under the statute, Fabick's counsel

16 No. 2020AP1718-OA.awb

responded: "The Governor could issue a separate order that is

targeted to the specific problem."14 That is exactly what the

Governor has done here.

¶122 Wisconsin Stat. § 323.10 prohibits the Governor from

extending a state of emergency past 60 days absent the approval

of the legislature. By issuing Orders #82 and #90, the Governor

has not extended a pre-existing state of emergency, but instead

has issued new emergency declarations based on new underlying

occurrences. Accordingly, I determine that under the plain

language of the statutes Orders #82 and #90 are permissible

exercises of the authority granted to the Governor in § 323.10.15

14 In more detail, the exchange proceeded as follows:

The Court: Let's just say, hypothetically, all of our hospitals are overrun . . . and we get to a point where there needs to be action taken, it's your position that because one emergency was issued, one state of emergency, based on an ongoing public health emergency or public health crisis, the Governor could do nothing in terms of declaring a state of emergency because the hospitals have been overrun, which could be another occurrence, correct?

Fabick's counsel: Well, if we're dealing with a targeted scenario, short supply of hospital equipment, the Governor could issue a separate order that is targeted to the specific problem. 15Because I determine that Orders #82 and #90 are permissible pursuant to Wis. Stat. § 323.10, I must reach the issue that the majority does not, i.e. the argument that § 323.10 constitutes an unconstitutional delegation of legislative power to the executive. This argument can be quickly dispatched.

17 No. 2020AP1718-OA.awb

¶123 This interpretation is buttressed by the fact that an

alternative "one and done" statutory interpretation, which in

the main is advanced by Fabick, puts forth a position that leads

to absurd or unreasonable results contrary to both common sense

and recent practice. See Kalal, 271 Wis. 2d 633, ¶46

(explaining that we must interpret statutes "reasonably, to

avoid absurd or unreasonable results").16

This court has recently acknowledged that "[c]onstitutional law has generally permitted the Governor to respond to emergencies without the need for legislative approval." Wisconsin Legislature v. Palm, 2020 WI 42, ¶41, 391 Wis. 2d 497, 942 N.W.2d 900. Such a clear statement from this court indicates that emergency response is at the very least a shared power between the legislative and executive.

In examining a nondelegation argument in the context of a shared power, this court "normally review[s] both the nature of delegated power and the presence of adequate procedural safeguards, giving less emphasis to the former when the latter is present." Panzer v. Doyle, 2004 WI 52, ¶55, 271 Wis. 2d 295, 680 N.W.2d 666.

Here, there is a safeguard in place in the form of the legislature's ability to revoke any state of emergency the Governor may declare. See Wis. Stat. § 323.10 ("The executive order may be revoked at the discretion of . . . the legislature by joint resolution.") Indeed, it must be asked how there could be an impermissible delegation of power when the legislature retains full authority to revoke any state of emergency the governor may issue.

The majority mischaracterizes this dissent as arguing 16

that the assertion "that a governor's power to act on an emergency basis would be temporary and terminable by the legislature" creates an absurd result. Majority op., ¶36 n.16. This contention by the majority is simply a straw man set up only to be inexorably torn down. Of course, it is not the statutory scheme that is absurd, but the majority's interpretation of limiting the governor to one emergency declaration per underlying cause.

18 No. 2020AP1718-OA.awb

¶124 As an illustration of the absurdity of this

alternative interpretation, consider an example taken from the

Governor's brief. Imagine heavy rains leading to a flood that

two months later causes a dam to break. If the governor

declared a state of emergency because of the initial flooding,

he could not issue another for the new flood caused by the dam

failure because it shares an underlying cause with the previous

state of emergency. This simply could not be the legislature's

intent.

¶125 Such an interpretation would cause the Governor to

engage in a perverse calculation regarding when to use an

emergency declaration——should he issue it now or save it and

wait to see how bad things get? This undermines the very

concept of an emergency: something is happening right now that

demands swift action without delay.

¶126 To further illustrate that this alternative

interpretation is unreasonable, I look to recent practice.

Indeed, from the Fall of 2013 through the Winter of 2014, Governor Walker issued seven executive orders related to propane

shortages and the resulting energy emergency.17 Then again from

the Fall of 2016 through the Winter of 2017, Governor Walker

declared two successive states of emergency to waive load limits

for petroleum transportation due to a pipeline shutdown and long

Office of the Wisconsin Governor, Executive Order No. 120 17

(Oct. 25, 2013); No. 121 (Nov. 7, 2013), No. 122 (Nov. 15, 2013); No. 124 (Nov. 27, 2013); No. 128 (Dec. 23, 2013); No. 130 (Jan 25, 2014); No. 132 (Apr. 17, 2014), https://docs.legis.wisconsin.gov/code/executive_orders/2011_scot t_walker/.

wait times at supply terminals.18 Fabick acknowledged at oral

argument that, despite his purported concern for a governor

overstepping his statutory authority, he did not challenge these

emergency declarations. Perhaps they went unchallenged because,

as Fabick has implicitly acknowledged, it makes no sense to

hamstring a governor's ability to meet the emergencies faced by

the people of Wisconsin by limiting emergency power to only one

underlying cause——regardless of whom is governor.

¶127 Thus, in the recent past, a governor has declared

numerous states of emergency premised on the same underlying

causes. Yet the majority reverses course from this established

practice and common sense to arrive at its unreasonable result.

¶128 An examination of the extreme consequences further

highlights the conclusion that this alternative interpretation

renders absurd or unreasonable results. The majority in large

part embraces this alternative interpretation, yet it attempts

to obscure the consequences of its declaration that the Governor

lacked authority to issue Executive Orders #82 and #90. In a one sentence footnote towards the end of its opinion, the

majority acknowledges the consequence of its declaration: "[a]s

a necessary consequence [of its decision], all executive actions

and orders issued pursuant to the powers triggered by the

Office of the Wisconsin Governor, Executive Order No. 223 18

(Nov. 4, 2016); No. 227 (Dec. 30, 2016), https://docs.legis.wisconsin.gov/code/executive_orders/2011_scot t_walker/.

20 No. 2020AP1718-OA.awb

emergency declaration are likewise void." Majority op., ¶43

n.19.19

¶129 Yet, in spite of the astounding breadth of the

asserted consequence of the majority's declaration, it takes

this dissent to task for even discussing the absurdity or

reasonableness of some of those consequences. See id., ¶15 n.6.

Surely, when enacted, the legislature could not have intended

that Wis. Stat. §§ 323.02(16) and 323.10 would be interpreted to

place such a roadblock to effective governmental response to a

worldwide pandemic.

¶130 Among the powers hamstrung by the majority are

critical executive powers set forth by statute that may be

exercised only in a public health emergency——powers that are

essential to saving lives and getting a rapidly-spreading

disease under control.

¶131 As the majority acknowledges, during a public health

emergency DHS is empowered to take critical steps to ameliorate

the emergency. See majority op., ¶35. Yet, these steps can be

Both Order #82 and #90 set the stage for additional 19

emergency measures necessitated by the spread of COVID-19. Specifically, pursuant to Orders #82 and #90, the Governor issued several emergency orders mandating the wearing of masks as a means of stemming the spread of COVID-19.

For example, Governor Evers issued Emergency Order #1 pursuant to Order #82 on July 30, 2020. See Emergency Order #1, https://evers.wi.gov/Documents/COVID19/EmO01-FaceCoverings.pdf (July 30, 2020). This emergency order required all individuals age five and older to wear a face covering in all indoor and enclosed spaces other than private residences when another person not a member of the individual's household is present in the same room or enclosed space.

21 No. 2020AP1718-OA.awb

accomplished only "during the period under which the department

is designated as the lead state agency," which in turn requires

a declaration of a public health emergency. Wis. Stat.

§ 252.041(1). Absent an emergency declaration, do these powers

simply vanish?

¶132 For example, during a public health emergency, DHS's

power includes the essential steps of purchasing vaccine,

antibiotics, and medical supplies. Wis. Stat. § 250.042(2)(a).20

Again, absent an emergency declaration, do these statutory

purchasing powers simply vanish?

¶133 Additionally, absent an emergency declaration,

Wisconsin also risks losing significant federal allotments to

mitigate the economic effects of this pandemic. Section

2302(2)(a) of the federal Families First Coronavirus Response

Act conditions the receipt of emergency supplemental nutrition

allotments on the declaration of states of emergency at both the

federal and state levels. The nonpartisan Legislative Fiscal

Bureau indicated that Wisconsin risks losing nearly $50 million per month in FoodShare assistance absent an emergency

declaration.21 An absurd result indeed. Without such measures,

what are we left with as we continue the battle against COVID-19

Wisconsin Stat. § 250.042(2)(a) provides that as the 20

public health authority pursuant to an emergency declaration, DHS may "[p]urchase, store, or distribute antitoxins, serums, vaccines, immunizing agents, antibiotics, and other pharmaceutical agents or medical supplies that the department determines are advisable to control a public health emergency."

Alexandra Bentzen, Legislative Fiscal Bureau, Impact of 21

Ending the State Public Health Emergency on Emergency FoodShare Allotments (Jan. 27, 2021).

22 No. 2020AP1718-OA.awb

and its fallout? As Judge Rovner recently wrote, "Good luck and

G-d bless, Wisconsin. You are going to need it." Democratic

Nat'l Comm. v. Bostelmann, 977 F.3d 639, 656 (7th Cir. 2020)

(Rovner, J., dissenting).

IV

¶134 Finally, abandoning any vestige of judicial restraint,

the majority denies a motion that was actually made yet reaches

out and grants a motion that was never made. Fabick filed a

motion for a temporary injunction on February 9, 2021,

requesting that Order #105 be temporarily enjoined and Governor

Evers filed a response to that motion on February 22, 2021.

¶135 Although declared moot, Fabick's motion could never

have been granted. Fabick did not sufficiently allege, let

alone attempt to demonstrate that he would suffer any

particularized irreparable harm——a requisite showing in order to

secure any temporary injunction.22 Faced with an inability to

22 A temporary injunction is not to be issued unless (1) the movant will likely suffer irreparable harm in the absence of an injunction; (2) the movant has no other adequate remedy at law; (3) a temporary injunction is necessary to preserve the status quo; and (4) the movant has a reasonable probability of success on the merits. Serv. Emps. Int'l Union, Local 1 v. Vos, 2020 WI 67, ¶93, 393 Wis. 2d 38, 946 N.W.2d 35. Competing interests must be reconciled and the petitioner must satisfy the court that on balance equity favors issuing the injunction. Pure Milk Prods. Co-op v. Nat'l Farmers Org., 90 Wis. 2d 781, 800, 280 N.W.2d 691 (1979).

23 No. 2020AP1718-OA.awb

grant the temporary injunction motion, what is the majority to

do? It reaches out and instead grants a motion for a permanent

injunction of Order #105——a motion that was never made.

¶136 Apparently the majority fails to recognize that the

granting of a permanent injunction also requires a showing of

irreparable harm. Werner v. A.L. Grootemaat & Sons, Inc., 80

Wis. 2d 513, 521, 259 N.W.2d 310 (1977) ("While standards for

the granting of temporary and permanent injunctive relief

differ . . . a showing of irreparable injury and inadequate

remedy at law is required for a temporary as well as for a

permanent injunction."). But with no irreparable harm

sufficiently alleged and none whatsoever demonstrated, it is no

surprise that the majority says nothing about it. How could it?

Perhaps the better question is how could the majority grant a

permanent injunction without it?

¶137 Nevertheless, the majority soldiers on. As

justification for its reach, the majority appears to suggest

that a permanent injunction motion was made "in post-argument motions . . . ." Majority op., ¶41 (emphasis added). That is

incorrect. There was but a singular post argument motion by

Yet nowhere in the majority's analysis are the factors necessary to grant either a temporary or permanent injunction even mentioned. The factors likely aren't mentioned because Fabick plainly does not meet them. Fabick has not established that he (or any Wisconsin taxpayer) will suffer any harm, much less irreparable harm. In conclusory fashion, he asserts that taxpayers are harmed by "wasted public expenditures" due to staff time drafting, promoting, and enforcing Order #105. But he does not make any argument that this supposed harm is irreparable, and we will not develop one for him.

24 No. 2020AP1718-OA.awb

Fabick23 that requested any injunctive relief at all and it was

for a temporary injunction. Similarly the majority justifies

its reach by suggesting that it makes its decision on a

permanent injunction "[a]fter hearing from both parties . . . ."

Id. But to the extent that this artful drafting suggests that

the court actually heard anything from the parties on the issue,

it is misleading. There was neither developed argument nor any

analysis advanced by either party on the issue of a permanent

injunction.

¶138 Ultimately, as the sole justification for its

overreach, the majority points to Fabick's "request [for]

permanent relief." Id., ¶41 n.17. This "request [for]

permanent relief" consists of a twice repeated sentence found in

Fabick's brief in support of his motion for a temporary

injunction in which he asks the court to "ultimately grant a

permanent injunction as part of its final judgment." If the

majority is going to permanently enjoin an executive order of

the Governor, it should do so based on more than a stray request tucked away in a brief that, in its very title, sets forth that

it is filed in support of a motion for temporary injunction

only. Thus, with a complete failure of demonstrating the

required irreparable harm, with unpersuasive justification and

with scant analysis, the majority permanently enjoins Order #105

and declares it unlawful. See id., ¶¶42-43.

The Legislature filed a motion to participate as amicus 23

in support of Fabick's motion for temporary injunction, but in its brief addressed the nondelegation doctrine only.

25 No. 2020AP1718-OA.awb

¶139 Recognizing that a permanent injunction is

functionally the equivalent of a declaratory judgment, the

majority denominates its decision as one for declaratory

judgment. But merely changing the label does not remove the

majority's problem with its overreach: no motion for

declaratory judgment regarding Order #105 was made by Fabick.

¶140 What makes the majority's reach even more untenable is

that Fabick has no standing to maintain this action. And if

that is not sufficient to cause the majority to pause, add to

the mix that Order #105 is not properly before the court. It

did not exist when this case was filed and thus could not have

been included in the petition for original action Fabick filed.

¶141 Reaching outside of the orders that were actually

challenged in this case to decide an issue not raised in the

petition for original action is unsound judicial practice. It

grants an end run around Wis. Stat. § (Rule) 809.70(1)(a), which

requires that a petition for original action state the issues

presented by the controversy. ¶142 The consideration of Order #105 at this late juncture

injects a new issue into this case that was not in existence

when the case was filed, briefed, or argued. Yet the majority

allows Fabick to litigate what should be a wholly separate case

as a motion for temporary injunctive relief. And further, as

set forth above, it is a wholly separate case that Fabick does

not have standing to bring. Accordingly, I would deny Fabick's

attempt to backdoor a new claim into this court's consideration.

26 No. 2020AP1718-OA.awb

¶143 The majority's scant analysis of Order #105 fares no

better. Despite purporting to strictly interpret the text of

Wis. Stat. § 323.10, the majority's conclusion regarding Order

#105 finds no textual support. The text of § 323.10 grants the

governor authority to issue an order declaring a state of

emergency and the legislature the power to "revoke[]" that

order. Nowhere, however, does the statute's plain text endow

the legislature with the power to prevent the governor from

issuing such an order in the first place. § 323.10. The

definition of "revoke" clearly limits the legislature's power as

reactive, not preventative: "To annul or make void by taking

back or recalling; to cancel, rescind, repeal, or reverse."

Revoke, Black's Law Dictionary 1580 (11th ed. 2019). The

Governor's issuing a new order after the legislature revokes a

prior, different order is not an "end run" around the statute;

it is a function of the statute as the legislature enacted it.

¶144 If the statute's plain text results in those two co-

equal branches wielding their competing authority against one another in what the majority calls "a game of whac-a-mole

between the governor and the legislature," majority op., ¶43,

then so be it. Generally, we have to take the statute's plain

and clear text "as we find it." Montello Granite Co. v.

Schultz, 197 Wis. 428, 432, 222 N.W. 315 (1928). Only by

impermissibly "read[ing] words into the statute that the

legislature did not write" could the majority reach the result

it wants. Cf. State v. Schultz, 2020 WI 24, ¶52, 390 Wis. 2d 570, 939 N.W.2d 519. Not only is Executive Order #105

27 No. 2020AP1718-OA.awb

improperly before the court, the specific remedy Fabick seeks on

that order is in the legislature's hands, not ours.

¶145 I conclude with an observation about the application

of the majority opinion to future emergency declarations.

Despite all of its tough talk regarding the Governor's ability

to declare public health emergencies and its declaration against

Order #105, the majority acknowledges that "determining when a

set of facts gives rise to a unique enabling condition may not

always be easy." Majority op., ¶39. In making such an

acknowledgement, the majority necessarily admits that this

opinion may not be the final word on emergency declarations due

to conditions caused by COVID-19.

¶146 Although we are more than a year into this pandemic,

we do not know what it will throw at us next. Even under the

majority's analysis, the threshold question remains whether a

new "enabling condition" exists (I, of course, would phrase the

question in the term the statute uses, "occurrence").

¶147 In sum, the majority opinion sub silentio overrules over a century of precedent related to taxpayer standing and

fails to discuss the essential statutory term "occurrence,"

while obscuring the consequences of its decision. It further

reaches out and, without any textual support, strikes down Order

#105, which is not properly before the court in the first place.

Ultimately, in the midst of public emergencies such as a global

pandemic, it hampers the ability of governors to safeguard the

health and lives of the people of Wisconsin. ¶148 For the foregoing reasons, I respectfully dissent.

28 No. 2020AP1718-OA.awb

¶149 I am authorized to state that Justice REBECCA FRANK

DALLET and Justice JILL J. KAROFSKY join this dissent.

29 No. 2020AP1718-OA.awb