Judge gives Gov. Evers victory on mask mandate as legal, political battle over coronavirus response continues
“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,” Governor Tony Evers said in a statement following the announcement of the decision. “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.”
The Wisconsin Institute for Law & Liberty, which brought forth the lawsuit, signaled it will persist with its legal challenge.
"It is with regret 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,” WILL President and General Counsel said in a statement. “We look forward to making an appeal on this critical constitutional matter."
The GOP-controlled Legislature submitted a brief in support of the lawsuit.
WILL and Republicans argue the governor and Department of Health Services Secretary-designee Andrea Palm overstepped their constitutional authority when declaring multiple emergency orders tied to the same issue – in this case, the coronavirus pandemic.
The Evers administration maintains it is acting within its constitutional powers.
Judge R. Michael Waterman said that, “nothing in the statute prohibits the governor from declaring successive states of emergency.” Waterman added that the plaintiffs’ request for an injunction went beyond private interests as putting an injunction in place would affect everyone in the entire state. The St. Croix County judge also noted that the Legislature can have a say in the issue outside the courts.
“The legislature can end the state of emergency at any time, but so far, it has declined to do so,” Waterman said.
Judge Waterman may still issue a wider ruling in the case, or WILL’s appeal may push the case forward to an appeals court or directly to the state Supreme Court, where conservatives hold a 4-3 majority.
The development in the case comes as Wisconsin continues to be among the nation’s worst hot spots.
Democrats applauded the ruling and said Republicans are likely hoping for a court ruling in their favor in order to avoid having to vote down the issue themselves.
“I think the reality is that [Republicans] realize that that is a political loser,” Sen. Chris Larson (D – Milwaukee) told CBS 58. “People want to be kept safe, they want the government to step in and be able to say uniformly, ‘everyone has to follow these rules.’”
A Marquette University Law School Poll released this month said 72 percent of those polled agree that masks should be required in public places while 26 percent disagree, an increase in approval from August. Mask-wearing is also recommended by the CDC as well as the White House Coronavirus Task Force.
Republicans are split on how to address the issue as some like Sen. Steve Nass (R – Whitewater), Sen. David Craig (R – Big Bend), Sen. Van Wanggaard (R – Racine) and Sen. Chris Kapenga (R – Delafield) want leadership to call the Legislature to convene in order to vote down the mandate. But others in the GOP have not been as vocal and even avoid a direct answer on where they stand on the issue.
“Most people are comfortable with the masks and I support that and I said, the actual mandate piece, let’s see what the court determines,” Rep. Joan Ballweg (R – Markesan) told reporters Monday at the Capitol.
Ballweg was pressed by reporters on if she would vote in favor or against a mask mandate if courts upheld the order.
“I haven’t seen what that proposal would be at this point. Whether it’d be up or down or considering what the court says,” Ballweg said.
“What if it was an up or down vote?” a reporter asked.
“Let’s see what the court says,” Ballweg replied
On another front, the Joint Committee for Review of Administrative Rules held an executive session Monday and voted along party lines to require the Department of Health Services to submit its order on limiting indoor gatherings as a rule, a process under which the committee – controlled by Republicans – could then vote to strike down.
DHS has 30 days to submit the rule but it is unclear if they will do so as courts uphold its authority on the issue as of now.
Any possibility of bipartisan solutions to the current crisis is up in the air.
Assembly Speaker Robin Vos requested a meeting with Governor Evers last week to, “discuss answers to deal with the virus, especially solutions that don’t result in families going bankrupt and thousands being added to the unemployment lines.”
Evers responded Monday with a letter to GOP leadership saying he was willing to work with them on the issue but noted their efforts in court and the Legislature were counter to what he is trying to accomplish.
“We desperately need Republicans in the Legislature to start taking this seriously,” Evers wrote. “And as has been the case throughout this pandemic and before, I remain willing to work with both of you as soon as you are ready.”