The Wisconsin Supreme Court, in a 4-3 decision, invalidated Governor Evers’ public health emergency declarations on March 31, 2021. The Court’s decision in Fabick v. Evers, 2020AP1718-OA, March 31, 2021 declared a series of public health emergency declarations invalid. The case was originally brought to the Court challenging the validity of Governor Evers’ July 30, 2020 public health emergency declaration. Since the initial filing, the Governor has issued three additional public health emergency orders, each one issued for a period of 60 days and each one beginning before the previous Order expired.

The Governor’s most recent declaration was issued February 4, 2021 and was set to expire on April 5, 2021 (Executive Order #105). In invalidating the Governor’s Orders, the Court made it clear that its decision applies to the July 30, 2020 Executive Order (Order 82) that was the original subject of the lawsuit, as well as the three subsequent Orders, Executive Orders #90, #104, and the current one, #105. Finally, the Court concluded that any additional Executive Orders that seek to declare a state of emergency “in response to COVID-19” are based on the same statutory occurrence and therefore invalid.

The Court’s Analysis

Each of the Governor’s Orders were issued using his authority found in section 323.10 of the Wisconsin Statutes.  Section 323.10 permits the Governor to declare a state of emergency, including a public health emergency, for a period which “shall not exceed 60 days, unless the state of emergency is extended by joint resolution of the legislature”. Wis. Stat. § 323.10. At issue in the case was whether the Governor exceeded his authority by issuing multiple 60-day public health emergency declarations related to the ongoing COVID-19 pandemic and doing so without legislative approval.[1]

Plaintiffs argued that the Governor’s emergency declaration authority permitted on 60 day unilateral order and that he exhausted that authority with the first such order, Executive Order #72, issued on March 12, 2020. The Governor argued that each declaration was a distinct state of emergency in part because each declaration relied on different circumstances in existence relative to the virus at the time of issuance. The Court rejected this, and other statutory interpretation arguments presented by the Governor, to conclude that each of the declarations were based on the same public health emergency or occurrence, and therefore beginning with the July 30, 2020 Order, could only be implemented by legislative action.

The Court stated as well that “as a necessary consequence” of the decision, all executive orders premised on the powers of the state of emergency are invalid. Wisconsin statute section 323.12(4)(b) authorizes the Governor to issue orders he “deems necessary” during an emergency. Most notably, this includes the Governor’s statewide face covering mandate issued most recently on February 4, 2021 as Order #1, based on the authority of his declaration of a “State of Emergency and Public Health Emergency” issued as Executive Order #105 also on February 4, 2021.

Implications of Court’s Decision on School District Face Covering Requirements

The Supreme Court invalidated the Governor’s exercise of his emergency declaration authority based on the statutory timeline restrictions. Therefore, there is no longer a statewide face covering mandate in Wisconsin. The Court expressly did not opine as to whether any of the orders, or associated actions including the face covering mandate, were a good idea or appropriate under the circumstances. Likewise, the Court did not consider whether the statewide face covering mandate was an appropriate exercise of emergency authority in the context of an otherwise valid state of emergency. In other words, nothing in the Court’s decision addresses whether the state government or any local government may, in the exercise of otherwise appropriate authority, require individuals to wear face coverings.

Nothing in the Court’s decision or in the resulting invalidation of the Governor’s state of emergency declaration, invalidates or prohibits local government authorities from issuing face covering requirements in circumstances that local government is authorized to exercise control. Importantly, this means that the Court’s decision has no practical effect on local governments, including public school districts’ authority to implement or maintain current face covering requirements.

School districts derive authority to implement face covering requirements from multiple sources of authority. Wisconsin Statute section 120.13(35) grants school boards’ authority to “adopt rules applicable to persons who enter or remain in a building operated by the school board”. School boards may also conclude that a face covering requirement is consistent with or even necessary due to their obligation to “furnish safe employment and place” under Wisconsin Statute section 101.11. This statutory provision states as follows:

No employer shall require, permit or suffer any employee to go or be in any employment or place of employment which is not safe, and no such employer shall fail to furnish, provide and use safety devices and safeguards, or fail to adopt and use methods and processes reasonably adequate to render such employment and place of employment safe, and no such employer shall fail or neglect to do every other thing reasonably necessary to protect the life, health, safety or welfare of such employees and frequenters…

Wis. Stat. § 101.11(2)(a).

Finally, state law grants school boards broad authority to carry out their statutory functions:

The statutory duties and powers of school boards shall be broadly construed to authorize any school board action  that is within the comprehensive meaning of the terms of the duties and powers, if the action is not prohibited by the laws of the federal government or of this state.

Wis. Stat. § 118.001

Whether to implement a face covering requirement for the school buildings, and/or for other school sponsored events and activities is a decision for the local school officials to make. As of this point, there has been no determination that any state or federal law prohibits such a requirement and the authority is therefore presumptively within the school districts’ authority. Nothing in this article is intended to state that such a rule is required, but rather only to illustrate that a school board’s decision to implement a face covering requirement for students, staff, and visitors to its facilities is not subject to the validity of the Governor’s state of emergency declaration. As such, a school district’s authority to implement a face covering requirement is not restricted or in any way inhibited by the Supreme Court’s Fabick decision.

Recommendations for School Districts

The Court’s decision may cause confusion with parents, students, and staff. Some may conclude or use the decision to argue that a school district face covering mandate is now unlawful. This, as discussed above, is not the case; however, it is advisable to remind all individuals of the requirements of your school district and to affirm that the requirement remains in place, if that is the case. If you have a current face covering mandate established independent of the Governor’s Orders, communication to staff, students, and parents advising them of the continued requirement is a good idea.

If your district implemented a face covering rule expressly in compliance with the Governor’s Orders, you may choose to evaluate whether to continue such a mandate expressly on the district’s authority and move to exercise that authority independent of the Governor’s Orders – even if you choose to effectively continue the same requirement.

[1] Noteworthy too is that Executive Order #104, issued on January 12, 2021, was overridden by a joint resolution in the legislature on February 4, 2021. That same day, Governor Evers issued Executive Order #105 again declaring a public health emergency for 60 days, set to expire on April 5, 2021.

For questions regarding this article, please contact the author,

or your Renning, Lewis & Lacy attorney.

Geoffrey A. Lacy

Geoffrey A. Lacy | 920.283.0704

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