Wisconsin Supreme Court considers mask mandate challenge

MADISON, Wis. (CBS 58) – The state Supreme Court heard oral arguments Monday, Nov. 16, in a case that could further limit Governor Tony Evers’ ability to respond to the ongoing COVID-19 crisis.

The case centers around the governor’s emergency order that includes the mask mandate. It was filed by Jeré Fabick, a board member of a conservative think tank and Republican donor. The challenge argues the governor cannot issue multiple emergency orders based on the same issue – in this case, Fabick’s attorneys argue, the COVID-19 pandemic.

“These orders represent an unlawful end run around the Legislature’s 60-day limit on the exercise of emergency powers,” attorney Matthew Fernholz said. “This court should declare these orders unlawful and void.”

The state Department of Justice, representing Gov. Evers, argued a disaster or threat may change over time and therefore allow the governor to issue multiple emergency orders to protect the state.

“This is not simply a COVID-19 case,” Assistant Attorney General Hannah Jurss told the justices. “The question before the court implicates the governor of Wisconsin's ability to address any emergency circumstances that may befall our state, whether caused by war, flood, fire or as here a viral pandemic.”

The case may come down to conservative Justice Brian Hagedorn.

Hagedorn sided with liberals in May when the court struck down Evers’ Safer at Home order. Since then, what was a 5-2 conservative majority has now shrunk to a 4-3 majority with the addition of Justice Jill Karofsky to the bench. But on Monday, Hagedorn signaled skepticism at the governor’s defense.

“Nobody's questioning the governor's sincerity in trying to do what he thinks is right here, but he can only do what the power he's been given to do,” Hagedorn said.

Political experts believe Hagedorn to be a wild card in deciding the case.

“It’s possible there could be a swing vote by Justice Hagedorn,” Mordecai Lee, Professor-Emeritus at UW-Milwaukee told CBS 58 in an interview. “[Hagedorn] sees this as an issue of gubernatorial powers. He doesn’t see this as an issue of power overreach of an unconstitutional act and so it depends on how the majority wants to frame this.”

Hagedorn served as legal counsel to former governor Scott Walker which many believe informs his interpretation of gubernatorial powers and likely led to him siding with the liberal justices in May.

It’s unclear when the court will deliver its ruling, something that may take several weeks.

Gov. Evers’ current mask mandate ends on Nov. 21. The Evers administration has not signaled exactly what it will do once that date comes.

Watch the meeting live here: