Wisconsin Judge Asked to Strike Down Statewide Mask Mandate

A masked voter receives a ballot from a masked poll worker in Janesville, Wis., on April 7, 2020. (Angela Major/The Janesville Gazette via AP)

HUDSON, Wis. (CN) — The legal limits of the Wisconsin governor’s power to declare an emergency were once again argued in court Monday, as a state judge weighed the constitutional interest in separation of powers against the continuing public health threat of Covid-19.

The underlying lawsuit was brought in late August by conservative advocacy group Wisconsin Institute for Law & Liberty, or WILL, on behalf of three taxpayers claiming Democratic Governor Tony Evers violated state law by declaring a second public health emergency in late July due to the coronavirus pandemic, which requires Wisconsinites to wear face coverings when inside and in public.

Evers cited a drastic increase in confirmed cases throughout the month of July as rationale for the second emergency declaration at the time it was issued.

WILL, a frequent litigant against the governor, added a motion for an immediate injunction in late September after Evers extended the 60-day emergency order from July for another 60 days about a week before it was set to expire. The group argued as it has before that Evers and his administration cannot unilaterally seize such emergency powers outside of a 60-day declaration without approval from the Wisconsin Legislature.

The issue was similarly before the Wisconsin Supreme Court back in May when it struck down Evers’ attempt to extend his first coronavirus-related emergency declaration from March. The high court’s consequential 4-3 decision agreed with conservatives that the legislature is responsible for further telling residents and businesses what to do about such an emergency after the governor’s 60-day declaration expires.

Nearly 150 days have passed since that decision, but lawmakers have taken no statewide action to combat the novel coronavirus, which as of Monday has caused 1,381 deaths from 134,359 confirmed cases in Wisconsin.

The Badger State has been the site of one of the nation’s worst coronavirus surges as of late, including a recent five-day streak of more than 2,000 new cases reported per day. Evers’ September extension to the state mask mandate was in response to a large spike connected to the return of students to the state’s college campuses, some of which saw dormitories locked down and students quarantined in response to the increase in cases.

Though WILL’s suit was originally brought in Polk County Circuit Court, it was transferred to St. Croix County Circuit Court Judge Michael Waterman’s court after judges in the two Polk County circuit branches recused themselves. St. Croix County is directly south of Polk County in a reliably conservative swath of north-northwest Wisconsin.

At the outset of Monday’s hearing, Waterman acknowledged “something I’ve been wrestling with over the weekend,” which was the fact that the state legislature has the statutory power to extend or terminate the governor’s emergency orders after 60 days seemingly without qualification but has not done so, instead opting to sue.

Waterman wondered if this meant the court was being asked to do something that the legislature has simply chosen not to do for one reason or another, questioning whether there was a justiciable controversy and whether any relief he provided would be a separation of powers issue.

WILL’s deputy counsel Anthony LoCoco argued Evers was overriding the Wisconsin Constitution and endowing himself with nearly unlimited emergency powers via gubernatorial decree “even though we are dealing with the exact same pandemic” his first order sought to combat.

LoCoco maintained that “this case is not about whether Covid-19 presents a public health challenge” and admitted that “there’s no dispute here that it does.”

When Waterman pushed back that the legislature has a check against Evers’ emergency powers that it has not used, LoCoco put forth that the check is not a silver bullet since the legislature could disagree on its decision to rescind the order or the governor could simply tweak his declaration and issue it again.

LoCoco also painted the statewide mask mandate as an invasion of personal liberty, calling it “a significant assertion of governmental powers” to force Wisconsinites to “wear something over their faces until further notice” without any way to stop Evers from declaring new emergency declarations over and over indefinitely.

Assistant Attorney General Colin Hector countered Monday that the pandemic uniquely does not present a singular “occurrence” calling for public health guidelines as its nature evolves, repeatedly comparing the coronavirus to a river that has recurring floods in need of renewed declarations with their own shelf life based on the circumstances.

Hector resisted WILL’s categorization of Evers’ second emergency declaration as fighting “the same old pandemic,” noting that “the data here is screaming out that, unfortunately, Wisconsin right now is in a very different and much worse situation even compared to a few weeks ago.”

The state’s attorney further explained that the plaintiffs had not alleged a cognizable injury or “shown any harm that can’t be remedied down the line” in their suit.

The suit, Hector said, is based on the plaintiffs’ “ephemeral interest in having their view of the law vindicated,” which is “really divorced from their everyday lives.”

Waterman seemed conflicted at the close of Monday’s proceedings and admitted that “this isn’t an easy issue.” The judge said he would take the matter under advisement and issue a written decision, which he promised would come soon.

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