A judge hearing the lawsuit over Wisconsin’s statewide mask mandate asked conservative lawyers Monday afternoon why he should block the order when the state Legislature has not.
“The Legislature apparently has decided for one reason or another not to act,” said St. Croix County Judge Michael Waterman. "They could [block the order] tomorrow if they wanted to."
The lawsuit filed by the Wisconsin Institute for Law and Liberty (WILL), a conservative legal firm, seeks to end Wisconsin’s indoor mask mandate, arguing that Gov. Tony Evers lacks the authority to issue such an order.
The ongoing legal battle comes amid a sharp increase in positive cases of COVID-19 over the past seven days in Wisconsin with 17,000 new infections.
Attorneys for WILL filed the request for an immediate injunction to declare the mask mandate invalid and void. The group said the lawsuit did not challenge whether masks are an effective way to curb the spread of COVID-19, rather it sought to address if state law was properly enforced.
The state statute in question requires the Legislature to convene in order to extend a state of emergency longer than 60 days. However, Gov. Evers has issued three emergency declarations since March without the approval of state legislators.
“A state of emergency may not exceed 60 days unless extended by a joint resolution of the legislature, no other exceptions,” Anthony LoCoco, an attorney for WILL representing the plaintiffs, said. “In this case the governor disregarded the law by issuing three emergency declarations.”
Evers declared the first state of emergency on March 12, at the beginning of the COVID-19 pandemic. The second, ordered July 30, extended the original mask mandate as new cases began to climb. The third, on Sept. 22, continued the edict after a surge of positive tests on Wisconsin college campuses.
Republican lawmakers, including Senate Majority Leader Scott Fitzgerald and Assembly Speaker Robin Vos, also filed a brief in support of the lawsuit, asserting Evers “overstepped his authority” by ordering another public health emergency over the same pandemic, the Milwaukee Journal Sentinel reported.
“Wisconsin’s emergency-powers statute cannot possibly be read to justify a Governor’s power to renew, unilaterally and indefinitely, a declared state of emergency caused by a single pandemic, regardless how long the pandemic lasts or how its severity changes over time," the brief said.
Wisconsin Assistant Attorney General Colin Hector argued the declarations were necessary and that each declaration came in response to changing conditions within the state.
“Whether the surge of COVID-19 cases in September 2020 is looked at as a new condition, a changing condition or a recurrent condition … it falls squarely on the definition of a public health emergency,” Hector said.
While Evers holds the power to issue an emergency declaration, state legislators possess the ability to revoke it. However, the Legislature hasn’t acted for over 150 days, since the initial response to the pandemic.
Some Republican lawmakers would become vulnerable come election time if the measure to cancel the mask mandate were put to a vote, leaving Republican lawmakers to enlisting the help of private attorneys to help their cause, according to the Journal Sentinel.
“It’s unconscionable that Republicans who haven’t passed a bill in 170 days somehow mustered the will to support yet another lawsuit aimed at preventing the governor from keeping people safe," said Evers’ Spokeswoman Britt Cudaback. "Republicans in Wisconsin have refused to take COVID-19 seriously from the beginning and continue to be unfazed by this crisis even after more than 50 reported COVID-19 deaths in three days."
Hector also criticized Republican lawmakers, and advocated they make the decision within the confines of the Legislature and that "It can't possibly be the case that [the Republicans] can have the courts make that decision for them."
But LoCoco countered and said the Legislature not revoking the mask mandate means little because Evers could re-issue the order by tweaking its language if one was blocked.
“We cannot simply live by gubernatorial decree,” LoCoco said. “If the governor wanted to extend the emergency he should have reconvened the legislature.”
Judge Waterman declined to give a ruling from the bench but said he would take the case under advisement and issue a written order soon.
While litigation is taking place at Polk County Circuit Court, Waterman said he expects his decision will likely be appealed to higher courts regardless of his decision.