The Wisconsin Supreme Court ruled Wednesday that Gov. Tony Evers exceeded his authority by extending a mask mandate without the approval of the Republican-controlled state Legislature.

The governor is barred from issuing any new public emergency health orders for longer than 60 days without legislative approval under the new ruling. Local governments can still order their own mask mandates.

Mask orders are currently in place in Milwaukee and Dane County, home to the city of Madison.

In their 4-3 decision, Supreme Court justices declared the statewide mask mandate invalid and ruled that Evers did not have the authority to issue multiple emergency declarations amid the COVID-19 pandemic. After Wisconsin lawmakers refused to order a mask mandate, Evers decided to use emergency orders to require face coverings indoors.

“The question in this case is not whether the governor acted wisely; it is whether he acted lawfully. We conclude he did not,” Justice Brian Hagedorn wrote for the majority in the 78-page decision.

Under Wisconsin state law, governors can issue health emergency orders for 60 days, but must get Legislature approval for an extension. Evers said he should be able to issue multiple health emergencies because of the changing nature of the pandemic.

State law governing public health emergencies must be read to forbid the governor “from proclaiming repeated states of emergency for the same enabling condition absent legislative approval,” Hagedorn said.

The mask order first took effect in August and Evers extended it four times, most recently on Feb. 4 after the Legislature repealed it.

Last May, the high court struck down Evers’ “safer at home” order that aimed to limit capacity in bars, restaurants and other indoor places.

Justice Ann Walsh Bradley, a member of the court’s three-justice minority, wrote in a dissent that the ruling hampers the ability of governors in Wisconsin to protect lives.

“This is no run-of-the-mill case,” she wrote. “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.

“Unfortunately, the ultimate consequence of the majority’s decision is that it places yet another roadblock to an effective governmental response to COVID-19.”

The case challenging the mask mandate was brought by major Wisconsin Republican donor Jere Fabick, who is the president of a multi-state Caterpillar equipment and engine dealer.

“Since the beginning of this pandemic, I’ve worked to keep Wisconsinites healthy and safe, and I’ve trusted the science and public health experts to guide our decision making,” Evers tweeted after the ruling.

“Our fight against COVID-19 isn’t over — while we work to get folks vaccinated as quickly as we can, we know wearing a mask saves lives, and we still need Wisconsinites to mask up so we can beat this virus and bounce back.”
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