(Reuters) – A divided Wisconsin Supreme Court on Wednesday struck down Governor Tony Evers’ mask mandate, saying he exceeded his authority and violated the separation of powers by reissuing emergency orders during the pandemic.
In its 4-to-3 ruling, which voids a Feb. 4 face-covering order currently in effect, the court found that Evers effectively breached a statute that limits his emergency powers to 60 days without approval of the state legislature.
“The question in this case is not whether the governor acted wisely; it is whether he acted lawfully,” Justice Brian Hagedorn wrote for the majority. “We conclude he did not.”
Evers, a Democrat, declared a state of emergency last March, which the Republican-controlled legislature never extended beyond its statutory 60-day limit.
In a partisan battle similar to others across the country over face-covering requirements aimed at slowing the spread of the coronavirus, Evers reissued his orders roughly every 60 days, changing some of the requirements each time.
His most recent renewal of an emergency health order on Feb. 4 came shortly after the legislature voted to repeal his earlier order requiring face coverings in public places.
The court’s majority likened the governor’s recurring orders to a game of whack-a-mole in which he sought to dodge the legislature, which opposed his extended emergency powers, by altering each new order even though it was substantially similar.
“The governor cannot make an end run around legislative revocation simply by itemizing a previously unidentified justification for the state of emergency,” it said.
Responding to the ruling, Evers said he followed the guidance of health experts to keep residents safe.
“While we work to get folks vaccinated as quickly as we can, we know wearing a mask saves lives, and we still need Wisconsinites to mask up so we can beat this virus and bounce back from this pandemic,” he said in a statement.
Two of the justices, including Chief Justice Patience Roggensack, issued a separate concurring opinion.
In their dissent, three justices faulted the majority for granting standing to the plaintiff, Jere Fabick, a Midwest dealer in Caterpillar Inc products who sits on the board of a conservative think tank, arguing that he was unharmed by the orders as a taxpayer.
“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,” Justice Ann Walsh Bradley wrote in her dissent.
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