Evers declares new health emergency, mandates masks statewide

Order cites legal authority in the name of ‘security of persons and property’

Gov. Tony Evers
Gov. Tony Evers speaks at a media briefing about the spread of COVID-19. (Screen shot from WisconsinEye)

With COVID-19 infections steadily rising by as much as a thousand detected cases per day, Gov. Tony Evers declared a new public health emergency Thursday, and with it, announced a statewide mandatory mask order to take effect Saturday, August 1.

“A few months ago, Wisconsin was in pretty good shape. The numbers were improving and we had made real progress in fighting this virus,” Evers told reporters in an online media briefing Thursday afternoon.

“Unfortunately, things have changed drastically since then. The tide has turned and we’ve seen a surge in new cases across our state. Although we’re fighting the same pandemic, we find ourselves in a completely different situation than the one we were in just a few months ago,” he continued. “We have to get back on track.”

The health emergency declaration cites “a drastic rise in COVID-19 cases throughout the entire state, with 61 of 72 counties … experiencing high COVID-19 activity.” Those are 84% of the state’s counties, but they represent 96% of the state’s population, the declaration states.

In the last two months, the statewide count of confirmed cases has nearly tripled, from 18,543 on June 1. As of Thursday afternoon, the state Department of Health Services (DHS) reported the number of confirmed COVID-19 infections in the state had reached 52,108, including 919 deaths.

Andrea Palm, Wisconsin Dept. of Health Services
Andrea Palm, secretary-designee of the Wisconsin Department of Health Services (DHS), speaking Thursday at an online media briefing about COVID-19’s latest toll in Wisconsin. (Screen shot from WisconsinEye)

“We know that Wisconsin is seeing significant community spread,” said Andrea Palm, secretary-designee for DHS. “Our data on the activity level of COVID-19 in counties and regions across the state shows us that Wisconsin is in a much more serious situation today than we were a month ago” — and much more than when Evers declared the state’s first health emergency for the virus in March.

Community spread means that “COVID-19 is widespread enough that interacting in the community may be all that it takes to expose you to the virus,” Palm said.

“People can spread COVID-19 without showing symptoms,” she added — so that people can be infected and spread it before they know they have it, and people can contract it from others who show no symptoms. “So all this means that the likelihood of people transmitting and catching COVID-19 in the community is high unless everyone takes precautions together.”

The mask order quotes Wisconsin law authorizing the governor during an emergency to issue “such orders as he or she deems necessary for the security of persons and property.”

“That face covering requirement does just that,” said Ryan Nilsestuen, chief legal counsel for the governor’s office. “It protects people in order to make sure that they’re not transmitting a very deadly virus from one person to the other.”

The order declares that “published scientific research” has shown the risk of transmission of COVID-19 among people without masks is 17.4%, compared with 3.1% among people wearing masks. It also cites modeling from the University of Washington that “estimates that a face covering requirement in Wisconsin could save more than 500 lives by Oct. 1 if 95% of Wisconsinites wear a face covering in public.”

Wisconsin becomes the 32nd state to institute a face-covering mandate, according to Nilsestuen.

For several weeks, the state’s COVID-19 caseload has been mounting. Since July 7, Evers and other government officials have worn cloth masks during the media briefings on the pandemic that DHS holds nearly every week, and have repeatedly urged Wisconsin residents to wear masks when interacting with others or in public buildings.

Starting with Madison and Milwaukee, several cities and counties around the state have instituted mandatory mask orders or ordinances, and more communities are considering them.

Order terms and exceptions

Evers’ statewide order requires anyone 5 years old or older to wear a face cover if they are “indoors or in an enclosed space” anywhere besides their private residence, and if they are among other people who aren’t members of their household. It also recommends masks “in all other settings, including outdoors when it is not possible to maintain physical distancing.”

The order allows for removing the mask when eating, drinking, sleeping, swimming or working as a lifeguard.

Other exceptions include when someone is speaking with the deaf or hard of hearing and can’t use other means to communicate, such as sign language; receiving a service requiring the mask off, such as dental treatment; doing work for which wearing a mask would create a risk, according to government safety guidelines; while a person is speaking with an audience and remaining at least 6 feet apart from everyone else; when the mask-wearer’s identity must be confirmed, such as in a bank; and when wearing a face covering is prohibited by state or federal law.

Citing guidance from the Centers for Disease Control and Prevention (CDC), the order also makes an exemption from the requirement for people who “have trouble breathing”; people who can’t remove the mask because they’re unconscious or incapacitated; people who can’t wear a mask for medical, mental health, or related reasons; and people in jail or prison.

Children ages 2 to 5 are encouraged — but not required — to wear masks when they can’t maintain physical distancing. The CDC doesn’t recommend masks for children younger than 2.

The order does not extend to offices and building space under the control of the Wisconsin Legislature or the Wisconsin Supreme Court. Since July 13, state employees in the executive branch have been required to wear masks on the job.

Ryan Nilsestuen, chief legal counsel in the office of Gov. Tony Evers, speaking Thursday at an online media briefing about the new Emergency Declaration and mandatory face mask order from Gov. Tony Evers to curb the spread of COVID-19 in Wisconsin. (Screen shot from WisconsinEye)

The order states violators could face a civil forfeiture of up to $200. That would be enforced by local district attorneys, if someone makes a complaint, Nilsestuen said — but he downplayed the idea of prosecuting violators.

While acknowledging that masks have “become, unfortunately, a highly polarized topic,” he called the order “narrowly tailored,” listing a number of exceptions.

“But when you’re out and about in public, indoors or in enclosed spaces, it does apply and, taking a very simple action, like wearing a mask, has a really significant impact on cutting down the spread of COVID-19,” Nilsestuen said. “So we’re hoping that people make the right decision, and that when there are situations where people aren’t complying, that local officials try to educate first before going down the enforcement route.”

Advocates for a statewide mask order have been speaking up for several weeks, and state Sen. Chris Larson (D-Milwaukee) began circulating a petition earlier this week calling for one.

“The people spoke, our governor listened,” Larson said in a statement Thursday afternoon. As of Thursday morning, he reported, more than 16,000 people had signed the petition “from every corner of Wisconsin” — and that excluding his own district, the average number of signers in Republican Senate districts was more than the average in Democratic ones.

“Four out of five signers are from outside Milwaukee, with several hundred different municipalities represented,” Larson stated.

“Thanks to Governor Evers’ leadership,” said Rep. Jodi Emerson (D-Eau Claire), “our current patchwork of various local policies will be replaced by a uniform statewide standard based on the best available science.”

GOP lawmakers lash out

Lawmakers’ response to the new emergency declaration and the mask order broke along party lines: While Democratic legislators put out statements praising the move, Republicans decried it.

For business owners, requiring customers to wear masks “is their choice, just as it is my choice to do business elsewhere,” stated Sen. Van Wanggaard (R-Racine).“But no one is going to make me wear a mask in my house, or walking my dog” — neither of which the order requires.

Steve Nass
State Sen. Steve Nass (R-Whitewater). (Screen shot from Wisconsin Eye broadcast)

Sen. Steve Nass (R-Whitewater), called the new emergency declaration “illegal and unnecessary” and demanded a special session to “to Block Evers’ Power Grab.” Citing that press release, a reporter asked Evers, “would [he] welcome legislative input on this issue?”

“Well, hell yes,” snapped Evers. “The Republicans could have come into session at any time. This has been a long pandemic, folks,” and Wisconsin is “one of the few states where the Legislature has not taken an active role” in crafting a state response to the disease. “So suddenly Steve Nass gets excited about this and wants to bring people in to do away with this order. I think that’s a sad commentary for all of us.”

Republican lawmakers, Evers charged, “essentially say ‘we don’t believe in science’ — pretty risky business. Pretty risky political business, and real risky health business.”

Other GOP legislators in their reaction statements declared Evers’ action was “overreach” or even “unconstitutional.” A statement from Rep.  Cody Horlacher (R-Mukwonago) carried a headline calling the governor “Dictator Evers.”

Assembly Speaker Robin Vos (R-Rochester) works the polling location wearing plastic gloves and gown in addition to a face mask in his Racine-area district on 4/7/20. (Photo contributed by Vos office).
Assembly Speaker Robin Vos (R-Rochester) works the polling location in his Racine-area district on 4/7/20. (Photo contributed by the Vos office).

Assembly Speaker Robin Vos (R-Rochester) stopped short of such characterizations, calling it “disappointing” that Evers “has chosen to not communicate or work with the Legislature.”

While asserting that there are “constitutional questions,” Vos — who with Senate Majority Leader Scott Fitzgerald filed the lawsuit that led the state Supreme Court to overturn an extension of the state’s earlier Safer at Home order in May — this time stepped back, saying only that he “would expect legal challenges from citizen groups.”

Evers said his staff has met regularly with the staff of both Vos and Fitzgerald and had general discussions, but that he did not directly consult with them on Thursday’s order.

“I did make this decision on my own — it’s an executive order from the governor of the state of Wisconsin,” he said, adding that he called both GOP legislative leaders “to give them a heads-up” before announcing the new order.

Court’s makeup shifts

In the Supreme Court’s May 13 ruling throwing out Safer at Home on a 4-3 vote, with Justice Daniel Kelly still on the bench, Justice Brian Hagedorn parted with the five-member conservative bloc, voting with two liberal justices to retain that order.

The governor’s mask order takes effect the same day that Jill Karofsky is to be sworn in to the high court — replacing Kelly, whom she defeated by 10 points in the April 7 election, expanding  the liberal wing to three justices. That prompted some Republican lawmakers to suggest that Evers timed his order accordingly, instead of putting it in place sooner — when, if challenged, it might have faced the same justices who had ruled against him in May.

Evers denied that. “We were really working hard to do this on a voluntary basis,” he said of mask-wearing. State officials talked up the idea and produced public service announcements to publicize the practice. A Wisconsin Economic Development Corp. grant program providing financial aid to state small businesses enlisted them to institute practices including the use of masks.

“We wanted to allow that to work, and it did to some extent,” Evers said, but as cases have spiked in recent weeks, “we decided that we needed to take a more serious look at a requirement.”

Nilsestuen cautioned against making ideological assumptions about how justices will rule, noting Hagedorn is considered one of the conservatives yet voted to sustain Safer at Home, while Kelly wrote a decision favoring the governor arising out of the late 2018 lame duck session restricting Evers’ powers.  

“While I think it’s a tempting thing to think that certain justices are automatically going to line up in certain ways, we want to make sure that we’re doing the best thing possible,” Nilsestuen said. “The right thing based on the law, based on the facts. And we hope that the justices agree with us regardless of what their perceived inclinations may be.”