THIS DOCUMENT WAS PREVIOUSLY FILED VIA E-MAIL

No. 2020AP1718 - OA

In the Supreme Court of Wisconsin

Jeré Fabick
Petitioner,

v.

Tony Evers, in his Official Capacity as the Governor of Wisconsin

Respondent.
__________________________________________________________________

PETITIONER’S MEMORANDUM IN SUPPORT OF HIS EMERGENCY

MOTION FOR A TEMPORARY INJUNCTION

Matthew M. Fernholz (WI Bar No. 1065765)

CRAMER, MULTHAUF & HAMMES, LLP
1601 East Racine Ave., Ste. 200
P.O. Box 558
Waukesha, WI 51387
(262) 542-4278
(262) 542-4270 (Fax)
[email protected]

Attorney for Petitioner

 INTRODUCTION

Ignoring the 60-day limit of Wis. Stat. § 323.10 (“Section 323.10”), the

Governor has issued multiple state of emergency declarations based on the COVID-

19 pandemic. As a result, Wisconsin has been in a continuous and seemingly perpetual

state of emergency since July 30, 2020, without legislative approval.

Throughout this case, the Governor (through his attorneys) represented to this

Court that the Legislature could end his state of emergency by a joint resolution, as

provided in Section 323.10. The Governor assured this Court repeatedly that a joint

resolution rescinding the state of emergency was an important procedural safeguard

against runaway executive declarations. Indeed, all five of his state of emergency

declarations provided “this State of Emergency from this Public Health Emergency

shall remain in effect for 60 days, or until revoked by the Governor or by joint resolution

of the Wisconsin State Legislature.” (Emphasis added.) Now we know the Governor’s

representations were false.

On February 4, 2021, the Legislature passed a joint resolution “terminat[ing]

and revok[ing]” Governor Evers’ fifth emergency order declaration, Executive Order

104. Within the hour, the Governor re-imposed the state of emergency, issuing Executive

Order 105, which tracks nearly verbatim the wording of Executive Order 104.

The Governor has drastically altered the status quo that existed at the time this

case was argued and in the months thereafter. He has taken actions that completely

contradict the legal positions he took in attempting to persuade this Court that the

power to declare a state of emergency under Section 323.10 was a political question to

1
be decided by the executive and legislative branches. Through his conduct, the

Governor has demonstrated that he will not comply with the law until ordered to do

so by this Court.

For the reasons set forth herein, this Court should issue a temporary injunction

restraining enforcement of Executive Order 105 and any similar subsequent emergency

declarations pending the outcome of this case. The Court should ultimately grant a

permanent injunction as part of its final judgment.

BACKGROUND FACTS

Governor Evers Issues Five Emergency Order Declarations Without Legislative

Approval

On March 12, 2020, Governor Evers, acting pursuant to Section 323.10, issued

Executive Order 72, which declared a state of emergency for the State of Wisconsin

related to public health in response to the COVID-19 pandemic. Executive Order 72

(March 12, 2020) (Pet. App. 1).

Under Executive Order 72, the Evers administration took numerous unilateral

actions affecting all Wisconsin citizens. For instance, the Wisconsin Department of

Health Services issued orders closing schools and restricting public gatherings. 1

Governor Evers also suspended the rules and actions of various administrative

agencies.2 The state of emergency declared under Executive Order 72 expired on May

1
See Emergency Order 1 (March 13, 2020) (Pet. App. 3); 4 (March 16, 2020) (Pet. App. 9); 5 (March
17, 2020) (Pet. App. 12); 6 (March 19, 2020) (Pet. App. 15); 8 (March 20, 2020) (Pet. App. 19); 12
(March 25, 2020) (Pet. App. 40); 28 (April 16, 2020) (Pet. App. 91); 31 (April 20, 2020) (Pet. App. 117).
2
See Emergency Order 3 (March 15, 2020) (Pet. App. 4); 7 (March 18, 2020) (Pet. App. 17); 9 (March
20, 2020) (Pet. App. 26); 10 (March 21, 2020) (Pet. App. 27); 11 (March 21, 2020) (Pet. App. 28); 13
(March 26, 2020) (Pet. App. 56); 14 (March 27, 2020) (Pet. App. 58); 17 (March 27, 2020) (Pet. App.

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11, 2020, 60 days after the Governor issued it. The Wisconsin Legislature did not

extend the state of emergency.

Thereafter, the Governor issued four additional state of emergency declarations

based on the COVID-19 pandemic. On July 30, 2020, Governor Evers declared a

second state of emergency related to COVID-19 under Section 323.10. Executive

Order 82 (July 30, 2020) (Pet. App. 135). On September 22, 2020, Governor Evers

declared a third state of emergency related to COVID-19, once again invoking Section

323.10. Executive Order 90 (Sep. 22, 2020) (Pet. App. 142). Following oral argument

in this case, Governor Evers issued two subsequent emergency orders. On November

20, 2020, he issued Executive Order 95, and on January 19, 2021, he issued Executive

Order 104. Each Executive Order declared COVID-19 a “public health emergency”

under Wis. Stat. § 323.02(16), and each order designated “the Department of Health

Services as the lead agency to respond to the public health emergency” pursuant to

Section 323.10.

Following a press conference on November 18, 2020, during which the

Governor announced his intent to issue the fourth state of emergency declaration, his

chief legal counsel, Ryan Nilsestuen, acknowledged that the fate of the serial

declarations of emergency was directly tied to the result of this Petition: “We had oral

arguments earlier this week in a case that addresses the governor’s ability to issue public

60); 18 (March 31, 2020) (Pet. App. 61); 21 (April 3, 2020) (Pet. App. 64); 22 (April 9, 2020) (Pet. App.
73); 23 (April 9, 2020) (Pet. App. 77); 26 (April 13, 2020) (Pet. App. 81); 29 (April 17, 2020) (Pet, App.
112); 30 (April 17, 2020) (Pet. App. 113); 33 (April 24, 2020) (Pet. App. 121); 35 (May 4, 2020) (Pet.
App. 123).

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health emergencies. I think that will provide clarity on the path forward rather than a

new lawsuit.” Mitchell Schmidt, Tony Evers to Extend Statewide Mask Mandate Into Next

Year, WIS. STATE J., Nov. 19, 2020.3

The Legislature Revokes the State of Emergency

On February 4, 2021, the Legislature passed Senate Joint Resolution 3 (“Joint

Resolution”), which relates to “terminating the COVID-19 public health emergency,

including all emergency orders and actions taken pursuant to declaration of the public

health emergency.” (Pet. Supp. App. at 7.) The Joint Resolution stated that “the

structural separation and limitation of governmental powers is foundational to our

republican form of government, in that it ensures the government exercises only that

authority to which the governed have consented.” (Pet. Supp. App. at 7.) After noting

that the Legislature never extended the state of emergency declaration relating to

COVID-19 after the Governor issued Executive Order 72 on March 12, 2020, the Joint

Resolution stated that “the governor’s authority to address the COVID-19 coronavirus

using the emergency powers identified in section 323.12 of the statutes expired on May

11, 2020.” (Pet. Supp. App. at 8.) Moreover, the Joint Resolution stated that

“legislative oversight is rendered useless if the governor ignores the temporal

limitations on the emergency powers by continuously reissuing emergency declarations

for the same emergency.” (Pet. Supp. App. at 8.) As a result, the Joint Resolution

3
Available at https://madison.com/wsj/news/local/govt-and-politics/tony-evers-to-extend-statewide-mask-
mandate-into-next-year/article_17bcaae3-642f-5aa8-8c5c-e657fa1fd208.html.

4
affirmed Petitioner’s argument that Executive Orders 82, 90, and 95 were “unlawfully

issued.” (Pet. Supp. App. at 9.)

In addition, the Joint Resolution revoked the then-current Executive Order 104.

As the Legislature stressed in asserting its prerogative, “it is incumbent upon the three

branches of government to act as checks on one another’s power in order to vigorously

protect and defend the principle of structurally separated and limited power, so as to

protect the governed from abusive government.” (Pet. Supp. App. at 9.) Accordingly,

the Joint Resolution resolved that

[T]he governor had no authority to issue Executive Order #104 on January

19, 2021, and it was therefore void from the date of its issuance, as were any
and all of the governor’s actions or orders related to the declared public health
emergency to the extent the authority for those orders or actions depended on
Executive Order #104, or sections 323.10 or 323.12 of the statutes; and

Be it further resolved, That regardless of whether Executive Order #104

should ever be construed as having conferred on the governor any authority
to exercise the powers granted by section 323.10 of the statutes, Executive
Order #104 is hereby terminated and revoked. The revocation of Executive
Order #104 terminates any and all of the governor’s actions or orders related
to the declared public health emergency to the extent the authority for those
orders or actions depend on Executive Order #104, or sections 323.10 or
323.12 of the statutes

(Pet. Supp. App. at 9–10.)

Lest there be any doubt that the Legislature was asserting its proper authority

as a co-equal branch of government, included in the Joint Resolution was the following

analysis by the non-partisan Legislative Reference Bureau:

This joint resolution resolves that the public health emergency declared
by the governor in Executive Order #104 on January 19, 2021, in response to
the COVID-19 coronavirus, is unlawful and is terminated. The termination
of the public health emergency applies to all actions of the governor and all
emergency orders issued pursuant to the declaration of the public health
emergency.

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(Pet. Supp. App. at 7.)

The Governor Defies the Legislature and Re-Imposes the State of Emergency

It did not take long for the Governor to react. Within an hour of the

Legislature’s passage of the Joint Resolution, the Governor re-imposed the State of

Emergency, issuing Executive Order 105, which tracked nearly verbatim the language

in Executive Order 104. (Pet. Supp. App. at 11–13.) The Governor took this unilateral

action despite a request from the Legislature to work with the Governor on creating

emergency rules pursuant to Wis. Stat. § 227.24. (Pet. Supp. App. at 1–6.)

ARGUMENT

Entry of a temporary injunction is warranted when: “(1) the movant is likely to

suffer irreparable harm if a temporary injunction is not issued; (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. Employees Int'l Union, Local 1 v. Vos, 2020 WI 67, ¶93, 393 Wis. 2d 38, 946 N.W.2d

35 (citations omitted). As set forth below, the Petitioner’s requested relief meets these

factors.

I. Fabick is Likely to Succeed on the Merits of His Claim that Executive

Order 105—Like the Previously Challenged Executive Orders—is
Unlawful

This Court should issue an injunction immediately enjoining the enforcement

of Executive Order 105. Fabick is likely to prevail on his claim that all emergency

orders issued subsequent to Executive Order 72, including most recently Executive

Order 105, are unlawful because: (1) The Governor repeatedly told this Court that the

6
Legislature had the authority to rescind his emergency order declarations at any time;

and (2) In the parallel Lindoo v. Evers case, the Governor successfully argued to the

circuit court that the Legislature had the power to end the state of emergency at any

time; as such, the doctrine of judicial estoppel prohibits the Governor from reversing

his legal position.

A. Governor Evers Acted Unlawfully in Issuing Executive Order 105 After

the Legislature Revoked Executive Order 104

1. Governor Evers Has Conceded That He May Not Override the

Legislature’s Revocation of an Emergency Order

Emergency Order 105 is unlawful based on the Governor’s own arguments to

this Court in which he stated that the Legislature could revoke the state of emergency

at any time, and the Governor could not ignore such a decision. For example, at oral

argument the Governor’s counsel stated: “[A]nd if the legislature importantly disagrees

with the Governor’s decision to issue a state of emergency order, it may revoke the

order at will, and it doesn’t have to give a reason, it just may do so.” (Statement of

Attorney Hannah Jurss, at 49:30 of oral argument.)

A member of this Court also touched on the Legislature’s broad power to

revoke emergency declarations:

Justice Karofsky: And the statute itself that we are talking about
actually gives the Legislature quite a bit of power, doesn’t it? The Legislature
can put an end to [inaudible] one of these emergency orders of the governor,
correct?

Attorney Esenberg: It could.

Justice Karofsky: It could extend it, correct?

Attorney Esenberg: It could do that.

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 Justice Karofsky: The legislature could convene, then could write a
whole new statute, couldn’t they?

Attorney Esenberg: They could do that.

Justice Karofsky: So the legislature actually has a lot of power here

should they choose to use it.

(Oral argument transcript at 28:24.) All of those statements were of course true. No

party has ever questioned—at any time—the Legislature’s authority to revoke a

Governor’s state of emergency declaration. Governor Evers’ actions on February 4

were a direct assault on the Legislature’s unquestioned power to revoke an emergency

declaration at will.

Fabick noted in his Petition that without a judicial declaration prohibiting the

Governor from issuing successive emergency order declarations for the same public

health emergency absent legislative approval, there was a real possibility the Governor

would simply issue new emergency order declarations in the face of a legislative

resolution ending the emergency: “If Governor Evers is correct in his reading of

Section 323.10 . . . . [t]he Legislature’s statutory ability to revoke the state of emergency

would be rendered illusory because, under Governor Evers’ interpretation, he may

issue a new declaration the next day after a joint resolution is passed.” (Pet. Br. at 33.)

The Governor downplayed this scenario, referring to it as a “hypothetical abuse

of power,” (Resp. Br. at 36.) and stating:

Fabick and the Legislature amicus argue that the Legislature’s explicit,
important, authority to revoke a state of emergency order is “illusory” because
a hypothetical Governor could override the Legislature’s decision to revoke an
order by issuing a new state of emergency order the next day. Of course, that
has not happened . . . .

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(Resp. Br. at 37, brief citations omitted.) The Governor further ridiculed the suggestion

that he would ever try to ignore a joint resolution ending the state of emergency: “[T]he

Legislature amicus makes the remarkable suggestion that this Court should step-in

because they fear the Governor would thwart any joint resolution they pass. This Court

should not do the Legislature’s work, particularly where the Legislature has not

attempted to revoke the existing order.” (Resp. Br. at 37, n.30, brief citations omitted.)

Throughout this lawsuit, Fabick and the Governor agreed on one point: if the

Legislature passed a joint resolution rescinding the state of emergency, the state of

emergency would end. It was always understood that the Legislature has the authority

under Section 323.10 to rescind an emergency declaration. As such, Executive Order

105 is unlawful by the Governor’s own admission.

2. The Governor’s Actions Related to the Issuance of Executive Order 105

Underscores that Fact that Section 323.10 Does Not Permit the Governor
to Unilaterally Declare Multiple States of Emergency Related to the
COVID-19 Pandemic

Fabick’s position was and is that the Legislature was not required to pass a joint

resolution because the Governor’s subsequent emergency order declarations were void

ab initio. The Governor used this previously unexercised legislative power—

unconvincingly—in an effort to shield his previous Executive Orders from judicial

scrutiny. His decision to issue Executive Order 105 immediately following the

Legislature’s resolution to end the Governor’s declared state of emergency further

supports Fabick’s argument that Section 323.10 does not give the Governor the right

to issue successive state of emergency declarations without Legislative approval.

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 A decision by this Court on the merits as to the lawfulness of Executive Orders

82, 90, 95, and 104 is even more pressing than when this case was briefed and argued.

The Governor previously tried to convince this Court that his successive emergency

order declarations were in response to changing circumstances stemming from

COVID-19. Indeed, the Governor derided Fabick’s position as imposing a “one-and-

done limitation” that would handcuff the executive branch’s ability to respond to a

flood that causes a dam to burst two months later. (Resp. Br. at 29-30.) And yet

Executive Order 104 and 105—which are nearly identical—were issued just 16 days

apart. The Governor cannot seriously contend that the “public health emergency”

created by COVID-19 changed between January 19, 2021, and February 4, 2021.

Accordingly, Executive Order 105 affirms the importance of the argument

Fabick made in his Petition: A Governor may not extend a state of emergency beyond

60 days without legislative approval.

3. If Executive Order 105 Complies with Section 323.10, Then the Statute
is an Unconstitutional Delegation of Legislative Power to the
Executive

For the reasons set forth above, Executive Order 105 violates Section 323.10

and thus is unlawful. As such, this Court does not need to reach the question of

whether Section 323.10 represents an unconstitutional delegation of legislative power

to the executive. However, in the unlikely event this Court determines that Executive

Order complies with Section 323.10, this Court should declare the statute an

unconstitutional delegation of legislative authority.

10
 Wisconsin courts have, in certain instances, allowed the Legislature to delegate

its power to the executive branch. Watchmaking Examining Bd. v. Husar, 49 Wis. 2d 526,

536, 182 N.W.2d 257 (1971). However, the Legislature must limit this delegation so

that its purpose is “ascertainable” and there are “procedural safeguards” to ensure the

executive branch acts “within that legislative purpose.” Id; see also State ex rel. La Follette

v. Stitt, 114 Wis. 2d 358, 228 N.W.2d 684 (1983) (noting the Legislature has instituted

“sufficient procedural safeguards” to prevent the governor and other administrative

officials from acting outside the legislative purpose of a statute for funding state

deficits, including a limit on the value of “operating notes” issued to fund an operating

deficit and review by a legislative committee before the operating notes are issued).

Here, the governor’s ability to issue an executive order declaring a state of

emergency in response to a single public health emergency, and then to issue unilateral

orders under that executive order that restrict the conduct of private persons within

the State of Wisconsin, is a delegation of legislative power. See Wis. Stat. § 323.01(1)

(Declaring that the policy behind Wisconsin Statutes Chapter 323 is “[t]o prepare the

state and its subdivisions to cope with emergencies resulting from a disaster, or the

imminent threat of a disaster, it is declared to be necessary to establish an organization

for emergency management, conferring upon the governor and others specified the powers

and duties provided by this chapter.”) (Emphasis added)).

The Governor previously argued there are two, and only two, procedural

safeguards in Section 323.10: (1) the state of emergency expiring after 60 days; or (2)

the Legislature voting to rescind the state of emergency. (Resp. Br. at 19-27, 33.)

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Should this Court accept Governor Evers’ latest interpretation of Section 323.10, then

these two safeguards will be rendered illusory, and the statute will represent an

unconstitutional delegation of legislative power to the governor.

If Executive Order 105 is permitted to stand, the Legislature’s statutory ability

to revoke the state of emergency would be totally eliminated, as the Governor now

contends he may re-issue an emergency declaration the very same day the Legislature revokes

the declaration. If the Governor is permitted to blithely ignore the Legislature’s joint

resolution rescinding an emergency declaration, then the Governor would have

complete unilateral authority to keep Wisconsin in a state of emergency for 365 days a

year based on the same underlying circumstances. Such a reading of Section 323.10

would be a blatantly unconstitutional delegation of power to one branch of

government.

B. The Doctrine of Judicial Estoppel Precludes the Governor From Arguing

that Executive Order 105 is Lawful

As the Court is aware, the Lindoo amici previously filed a lawsuit in Polk County

Circuit Court raising many of the same arguments presented in this Petition. See Polk

County Case No. 20CV219. There, the plaintiffs moved (unsuccessfully) for a

temporary injunction against Executive Orders 82 and 90. In opposing the Lindoo

plaintiffs’ motion, the Governor repeatedly stressed that “[t]he Legislature’s power to

revoke a state-of-emergency order is a meaningful procedural safeguard.” (Pet. Supp.

App. at 57.) Indeed, the Governor repeatedly assured the circuit court in Lindoo that

the power to end the state of emergency resided with the Legislature:

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 • “Contrary to Plaintiffs’ one-and-done reading of the law, the statute gives the
Governor authority to issue a new order declaring a state of emergency. And if
the people’s representatives in the Legislature believe that new order is
improper, the remedy is clear: The Legislature can revoke it.” (Pet. Supp. App.
at 18.)

• “And thus, we see that Plaintiffs’ true disagreement is with the Governor’s
conclusion that this COVID-19 spike constitutes an emergency worthy of a new
state-of-emergency declaration. But, again, that is a factual determination that
the Governor is empowered to make, and the Legislature is permitted to revoke.
It is not an issue this Court should resolve.” (Pet. Supp. App. at 54.)

• “The reasoning of Panzer forecloses Plaintiffs’ nondelegation argument. Not

only is Wis. Stat. § 323.10 subject to the same safeguards that the Panzer Court
pointed to—repeal, amendment, and public opinion—it contains a much more
immediate and powerful safeguard: The Legislature may simply terminate an
executive order by joint resolution.” (Pet. Supp. App. at 59.)

• “More specifically, Wis. Stat. § 323.10 protects (1) the Governor’s interest in
initially determining whether emergency conditions exist and, when they do
exist, in declaring a state of emergency; and (2) the Legislature’s interest in
passing a joint resolution to revoke or extend such an emergency order,
whenever the Legislature, in its own discretion, deems such action appropriate.
Under the statute, however, only the Legislature has a legally protected interest
in revoking a gubernatorial declaration of an emergency. And that may occur
only by the statutorily prescribed mechanism of a legislative joint resolution—
not by private litigation.” See Wis. Stat. § 323.10. (Pet. Supp. App. at 39.)

The Governor was successful in getting the circuit court to adopt his argument.

In its decision denying the motion for a temporary injunction, the circuit court held

“[t]he legislature can end the state of emergency at anytime, but so far, it has declined

to do so.” (Pet. Supp. App. at 65.)

The doctrine of judicial estoppel precludes the Governor from now changing

his position. “For judicial estoppel to be available, three elements must be satisfied: (1)

the later position must be clearly inconsistent with the earlier position; (2) the facts at

13
issue should be the same in both cases; and (3) the party to be estopped must have

convinced the first court to adopt its position.” State v. Ryan, 2012 WI 16, ¶33, 338

Wis. 2d 695, 809 N.W.2d 37. The United States Supreme Court has described the

necessity of the doctrine of judicial estoppel: “[W]here a party assumes a certain

position in a legal proceeding, and succeeds in maintaining that position, he may not

thereafter, simply because his interests have changed, assume a contrary position,

especially if it be to the prejudice of the party who has acquiesced in the position

formerly taken by him.” New Hampshire v. Maine, 532 U.S. 742, 749 (2001) (citation

omitted). As applied by Wisconsin courts, the doctrine prevents a party from taking a

position on appeal inconsistent with the position taken at the trial court. See, e.g., State

v. English–Lancaster, 2002 WI App 74, ¶22, 252 Wis. 2d 388, 642 N.W.2d 627; State v.

Michels, 141 Wis. 2d 81, 97, 414 N.W.2d 311 (Ct. App. 1987).

Governor Evers successfully argued to the circuit court that the decision to

rescind an emergency order declaration was for the Legislature to make. The circuit

court agreed. Perhaps the Governor thought the Legislature would never vote to

revoke one of his emergency declarations. Regardless, the doctrine of judicial estoppel

precludes the Governor from changing his positions.

II. The Remaining Factors Weigh in Favor of this Court Granting a

Temporary Injunction

Moving beyond the likelihood of success factor, this Court should grant a

temporary injunction as Fabick has no other adequate remedy at law. The basis for

this Petition was that the Governor was violating Section 323.10 by repeatedly declaring

a state of emergency without legislative authorization for the same public health

14
emergency. The Governor’s response was that the courts had no role to play in this

interbranch dispute between the executive and legislative branches. That professed

safeguard has now been discarded, as the Governor is refusing to recognize the Joint

Resolution invalidating the latest emergency order declaration. There is now quite

literally nothing to stop the Governor from keeping Wisconsin in a perpetual state of

emergency short of an order of this Court.

Next, an injunction is needed to preserve the status quo. The status of this case

from the time of oral argument in November through the issuance of the fifth

emergency order declaration in January was the same. The Governor drastically altered

the status quo on February 4, 2021, when he reversed his prior position that the

Legislature could vote down a state of emergency through a joint resolution. Injunctive

relief is particularly appropriate here because it would merely restore the state of affairs

that existed before Executive Order was issued.4

4
Invalidation of Executive Order 105 would not render the remainder of Fabick’s petition moot.
Fabick sought a declaration that the Governor’s authority to declare a state of emergency in response
to a single public health emergency is limited to a single 60-day period, unless the Legislature agrees to
extend the state of emergency. Thus, a ruling on the merits of Executive Orders 82, 90, 95, and 104,
is still a pending question before the Court.
To the extent this Court believes invalidation of Executive Order 105 would resolve the merits
of Fabick’s petition, this Court should nonetheless proceed with answering the questions presented in
this original action. In cases such as this one—indeed, even in cases much less compelling than this
one—this Court has recognized that it “has a law-declaring function” and “matters of serious public
concern which are likely to cause judicial disputes in the future are not resolved when a factual basis
on which a judicial declaration may be made to guide future conduct is presently before the court.”
State ex rel. LaCrosse Tribune v. Circuit Court, 115 Wis. 2d 220, 228-229, 340 N.W.2d 460 (1983). In such
cases, it is “not inappropriate for this court, where a problem is likely to recur, to declare the law for
the guidance of other courts, even though the particular controversy is moot.” Id. at 230.
Indeed, this case meets many of the exceptions this Court has recognized for deciding an
otherwise moot issue, as this case presents an issue “of great public importance,” the “constitutionality
of a statute is involved,” the situation given the current pandemic is likely to “arise again and should
be resolved by the court to avoid uncertainty,” and the question presented “evades review because the

15