Wisconsin Judge Upholds Statewide Mask Mandate

A masked election worker processes absentee ballots in Milwaukee, Wis., on April 7, 2020. (Mark Hoffman/Milwaukee Journal Sentinel)

HUDSON, Wis. (CN) — A Wisconsin judge left the state’s mask mandate in place Monday, ruling against conservatives who claimed the Democratic governor had violated state law by declaring another public health emergency due to the coronavirus pandemic.

The underlying lawsuit came in late August from conservative advocacy group Wisconsin Institute for Law & Liberty, or WILL, on behalf of three taxpayers claiming Governor Tony Evers breached Wisconsin statutes and constitutional separations of power by declaring a second public health emergency in late July to stem the spread of Covid-19, which requires Wisconsinites to wear face coverings when inside and in public.

The governor 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 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 GOP-controlled Wisconsin Legislature.

The Wisconsin Supreme Court struck down Evers’ first statewide coronavirus emergency declaration from March when he tried to extend it in May. The high court’s consequential 4-3 decision agreed with conservatives that the legislature—which has taken no statewide action against the virus in nearly five months—is responsible for further telling residents and businesses what to do about such an emergency after the governor’s 60-day declaration expires.

St. Croix County Circuit Court Judge Michael Waterman disagreed Monday, finding that the taxpayer plaintiffs do not have a clear right to the relief they seek and that Evers is free to declare more than one state of emergency under a plain reading of state law.

“Nothing in the statute prohibits the governor from declaring successive states of emergency,” Waterman said, continuing that the statute’s language “gives the governor broad discretion to act whenever conditions in the state constitute a public health emergency.”

Waterman called WILL and the plaintiffs’ notion that the 60-day limit to the governor’s states of emergency becomes meaningless if he can declare successive states of emergency for the same crisis “incorrect.”

“The 60-day limit provides an important check against run-away executive power, but it does not prevent the governor from issuing a new executive order when the emergency conditions continue to exist,” Waterman said.

The judge was reluctant to overstep the court’s authority and enter the state government’s domain in handling these kinds of emergencies, pointing out that “the legislature can end the state of emergency at any time, but so far, it has declined to do so” and “the legislature’s inaction is relevant and it weighs against judicial intervention.”

WILL founder and chief counsel Rick Esenberg reacted to the ruling Monday with a mix of regret and a promise to make an appeal “on this critical constitutional matter.”

Esenberg said it was unfortunate that “the judge held that the governor of the state of Wisconsin can rule the state by decree for an unlimited amount of time with the acquiescence of the legislature.”

Evers and the Democratic state attorney general applauded Waterman’s decision to leave the mask mandate be.

“Today’s ruling is a victory in our fight against Covid-19 and our efforts to keep the people of Wisconsin safe and healthy during this unprecedented crisis,” Evers said in a statement. “As the number of Covid-19 cases in Wisconsin reached 150,000 yesterday, we will continue doing everything we can to prevent the spread of this virus.”

Attorney General Josh Kaul remarked in his own statement that “today’s ruling is the right one” and took Republicans in the Wisconsin Legislature to task for resisting Evers’ attempts to control the state’s surge in coronavirus activity.

“I encourage legislative Republicans to stop supporting this attack on the mask requirement and instead to work with Governor Evers to adopt statewide policies that will allow us to more effectively fight the virus and keep Wisconsinites safe,” Kaul said.

On a related matter, the legislature’s Joint Committee for Review of Administrative Rules—the body that the state supreme court has said must be involved in rulemaking procedures—met in an executive session Monday afternoon regarding Evers’ order from last week limiting public gatherings at places like bars, restaurants and movie theaters to 25% of their capacity.

The Republican-controlled committee ultimately voted 6-4 along party lines that Evers and the Department of Health Services’ public gatherings order is a “rule of general application” under state law and must be submitted to rulemaking procedures involving more debate and public hearings over the next 30 calendar days.

Representative Joan Ballweg, R-Markesan, a committee co-chair, said at the top of the session that it was obvious Evers and the state health department had not had enough conversation with public health officials before crafting its order, offering as proof the fact that Milwaukee Mayor Tom Barrett elected to keep the city’s existing public gatherings limit in place instead of adopting the Evers administration’s.

Committee Democrats condemned Republicans for their inaction and partisan obstructionism with regard to Wisconsin’s Covid-19 response, which all told has resulted in the state becoming among the worst in the nation in terms of virus activity.

Senator Chris Larson, D-Milwaukee, who appeared in person and wore a mask, said “it seems asinine to have an academic discussion in an ivory tower” needling over what kinds of rulemaking procedures technically should be followed while Wisconsin has seen more than 150,000 cases of Covid-19 with 8,300 total hospitalizations and no end in sight to the current surge.

Representative Lisa Subeck, D-Madison, called the committee hearing “political theater” for Republicans and called the partisan bickering in Wisconsin “tiresome for the people of our state” in the face of a public health crisis.

Subeck said she was “pleased that today the court upheld the mask requirement,” referring to Waterman’s ruling from Monday morning.

Republicans who appeared at the committee meeting Monday, none of whom wore masks, defended their actions against Democrats’ barbs.

Senator Stephen Nass, R-Whitewater, who co-chairs the committee with Ballweg, accused the Department of Health Services of being a “rogue agency” that wants to govern by decree without legislative input. Senator Duey Stroebel, R-Saukville, noted that the World Health Organization recently discouraged lockdowns as a Covid-19 mitigation strategy and called Evers’ initial March lockdown in the virus’ early days “a disaster for the state of Wisconsin” that shuttered businesses and damaged the economy.

Larson fired back that “the reality is that this is not a lockdown” and clarified that the WHO only discouraged lockdowns as the sole means of fighting the virus while encouraging steps like limiting capacity—the very measure debated and reined in during the committee’s session.

Nass reiterated that the committee was not debating Covid-19 but rather whether the health department broke the law with its unilateral emergency order, which Republicans on the committee insisted it had.

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