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.
2

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. 
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,

 v.

Tony Evers, in his Official Capacity as the 

Governor of Wisconsin,

 Respondent.

FILED

MAR 31, 2021

Sheila T. Reiff

Clerk of Supreme Court

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 

2

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 COVID19 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 

 

1 All subsequent references to the Wisconsin Statutes are to 

the 2019-20 version unless otherwise indicated.
No. 2020AP1718-OA 

3

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 
No. 2020AP1718-OA 

4

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 
No. 2020AP1718-OA 

5

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).

4 The second and fourth conditions——adversity and ripeness——

are not challenged by the Governor and are clearly satisfied 

here.
No. 2020AP1718-OA 

6

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, 
No. 2020AP1718-OA 

7

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.
No. 2020AP1718-OA 

8

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.
No. 2020AP1718-OA 

9

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 
No. 2020AP1718-OA 

10

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.
No. 2020AP1718-OA 

11

¶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 
No. 2020AP1718-OA 

12

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.
No. 2020AP1718-OA 

13

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
No. 2020AP1718-OA 

14

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. 
No. 2020AP1718-OA 

15

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 durationlimiting 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).
No. 2020AP1718-OA 

16

¶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.

 

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

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.").

11 The emergency powers of local governments are described 

in Wis. Stat. § 323.14(4).
No. 2020AP1718-OA 

17

¶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.").
No. 2020AP1718-OA 

18

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 

 

13 Chapter 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).
No. 2020AP1718-OA 

19

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 

 

14 The September 11, 2001 attacks were "the deadliest 

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.
No. 2020AP1718-OA 

20

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. 
No. 2020AP1718-OA 

21

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 

 

15 We 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.

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

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.
No. 2020AP1718-OA 

22

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 onthe-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 onthe-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 
No. 2020AP1718-OA 

23

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.
No. 2020AP1718-OA 

24

¶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 

 

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

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.
No. 2020AP1718-OA 

25

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 whaca-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 

 

18 In its original merits briefing, the Governor repeatedly 

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."
No. 2020AP1718-OA 

26

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

 

19 As a necessary consequence, all executive actions and 

orders issued pursuant to the powers triggered by the emergency 

declaration are likewise void.

20 In 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.
No. 2020AP1718-OA 

27

By the Court.——Rights declared; relief granted.
No. 2020AP1718-OA.rgb

1

¶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 

 

1 Morrison v. Olson, 487 U.S. 654, 697 (Scalia, J., 

dissenting) (citing Part the First, Article XXX, of the 

Massachusetts Constitution of 1780).
No. 2020AP1718-OA.rgb

2

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 
No. 2020AP1718-OA.rgb

3

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.
No. 2020AP1718-OA.rgb

4

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 
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5

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).
No. 2020AP1718-OA.rgb

6

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. 
No. 2020AP1718-OA.rgb

7

¶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 
No. 2020AP1718-OA.rgb

8

(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. 
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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, 

 

3 Watchmaking 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).
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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.
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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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13

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 constitutionallyconferred powers, thereby damaging the "foundation of American 
No. 2020AP1718-OA.rgb

14

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 everevolving 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 
No. 2020AP1718-OA.rgb

15

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 
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16

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 
No. 2020AP1718-OA.rgb

17

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 
No. 2020AP1718-OA.rgb

18

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 
No. 2020AP1718-OA.rgb

19

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.

 

6 See 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.").
No. 2020AP1718-OA.awb

1

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

 

1 The 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.
No. 2020AP1718-OA.awb

2

"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.
No. 2020AP1718-OA.awb

3

I

¶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 

 

2 Wisconsin Department of Health Services, COVID-19: 

Wisconsin Summary Data, https://www.dhs.wisconsin.gov/covid19/data.htm#summary (last visited Mar. 29, 2021).

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

revoked at the discretion of either the governor by executive 

order or the legislature by joint resolution.").
No. 2020AP1718-OA.awb

4

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.

 

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

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.
No. 2020AP1718-OA.awb

5

II

¶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 

 

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

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)).
No. 2020AP1718-OA.awb

6

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 
No. 2020AP1718-OA.awb

7

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).
No. 2020AP1718-OA.awb

8

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 

 

7 Memorandum 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/presidentialactions/2021/01/21/extend-federal-support-to-governors-use-ofnational-guard-to-respond-to-covid-19-and-to-increasereimbursement-and-other-assistance-provided-to-states/ 

(Jan. 21, 2021).

8 FACT 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/statementsreleases/2021/02/02/fact-sheet-president-biden-announcesincreased-vaccine-supply-initial-launch-of-the-federal-retailpharmacy-program-and-expansion-of-fema-reimbursement-to-states/

(Feb. 2, 2021).
No. 2020AP1718-OA.awb

9

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 
No. 2020AP1718-OA.awb

10

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). 
No. 2020AP1718-OA.awb

11

III

¶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.
No. 2020AP1718-OA.awb

12

¶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 
No. 2020AP1718-OA.awb

13

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

 

11 The 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.
No. 2020AP1718-OA.awb

14

¶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 

 

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

(1998) ("For purposes of statutory interpretation or 

construction, the common and approved usage of words may be 

established by consulting dictionary definitions.").

13 Occur, American Heritage Dictionary of the English 

Language, https://www.ahdictionary.com/word/search.html?q=occur

(last visited Mar. 29, 2021). 
No. 2020AP1718-OA.awb

15

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 
No. 2020AP1718-OA.awb

16

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 
No. 2020AP1718-OA.awb

17

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. 

15 Because 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. 
No. 2020AP1718-OA.awb

18

¶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. 

16 The majority mischaracterizes this dissent as arguing 

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.
No. 2020AP1718-OA.awb

19

¶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 

 

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

(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/.
No. 2020AP1718-OA.awb

20

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 

 

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

(Nov. 4, 2016); No. 227 (Dec. 30, 2016), 

https://docs.legis.wisconsin.gov/code/executive_orders/2011_scot

t_walker/.
No. 2020AP1718-OA.awb

21

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 

 

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

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.
No. 2020AP1718-OA.awb

22

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 

 

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

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."

21 Alexandra Bentzen, Legislative Fiscal Bureau, Impact of 

Ending the State Public Health Emergency on Emergency FoodShare 

Allotments (Jan. 27, 2021). 
No. 2020AP1718-OA.awb

23

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).
No. 2020AP1718-OA.awb

24

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.
No. 2020AP1718-OA.awb

25

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. 

 

23 The Legislature filed a motion to participate as amicus 

in support of Fabick's motion for temporary injunction, but in 

its brief addressed the nondelegation doctrine only.
No. 2020AP1718-OA.awb

26

¶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.
No. 2020AP1718-OA.awb

27

¶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 coequal 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 
No. 2020AP1718-OA.awb

28

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.
No. 2020AP1718-OA.awb

29

¶149 I am authorized to state that Justice REBECCA FRANK 

DALLET and Justice JILL J. KAROFSKY join this dissent.
No. 2020AP1718-OA.awb

1