The state Supreme Court is moving quickly to hear a challenge a Waukesha County businessman filed to Gov. Tony Evers’ statewide mask mandate, setting oral arguments in the case for Nov. 16.

In the 4-3 ruling late yesterday, the court agreed to take original jurisdiction in the suit filed by Jere Fabick that argues Evers exceeded his authority in declaring multiple health emergencies to deal with the COVID-19 pandemic. The suit argues Evers was only able to declare one public health emergency and then needed the Legislature’s approval to extend it beyond a 60-day window.

To date, Evers has declared three public health emergencies related to the pandemic. The second and third orders were the foundation for the guv’s mask mandates.

The court directed parties to address whether the mask mandate was authorized under state law. The court also wants the parties to weigh in whether the statute used to issue the order is “an unconstitutional delegation of legislative power to the executive branch.”

The court also denied a request from the conservative Wisconsin Institute for Law and Liberty to combine a challenge it filed in Polk County to Evers’ mask mandate with the Fabick suit. In that case, a judge declined to bar enforcement of the order.

In her dissent, Justice Rebecca Dallet complained taking original action in the Fabick suit was the “latest step in the majority’s efforts to transform this court from one of last resort to the first stop for any discontented Wisconsinite.”

Conservatives have gone directly to the state Supreme Court in a string of cases, often with WILL as counsel. That includes last month agreeing to take original action in a challenge to a Dane County order impacting private schools, in October 2019 to several budget vetoes Evers issued and in April 2018 in an attempt to force then-state Superintendent Evers to submit DPI’s proposed administrative rules to the guv’s office for review.

Dallett, joined by fellow liberals Ann Walsh Bradley and Jill Karofsky, argued the Polk County case should’ve been allowed to play out in the lower courts before the justices stepped in.

“Our original-action jurisdiction is not meant to allow a single, disgruntled taxpayer to jump the line to achieve a desired outcome,” Dallet wrote. “The lower courts should be permitted to carry on without unnecessary and premature interruptions.”

The court also put on hold the Polk County suit pending a ruling in the Fabick case.

WILL’s Rick Esenberg praised the court for taking original action in the Fabick suit.

“Governor Evers’ use of multiple emergency declarations to address COVID-19 pose critical challenges to the rule of law and the separation of powers in Wisconsin,” he said.

See the order in the Fabick case:
https://www.wispolitics.com/wp-content/uploads/2020/10/201028Fabick.pdf

See the order in the Polk County case:
https://www.wispolitics.com/wp-content/uploads/2020/10/201028WILL.pdf

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