Lawyers argue for, against latest Wisconsin health emergency

In online hearing, judge considers temporary injunction that could halt state mask requirement

An array of face masks for COVID-19
Masks sewn by Jan Ruvido Stebbins | Laina G. Stebbins via Michigan Advance

Lawyers for the state of Wisconsin and for a conservative law firm that wants to throw out Gov. Tony Evers’ newest health emergency declaration related to the COVID-19 pandemic argued Monday over whether the order should be blocked immediately — and with it, the state’s mandatory mask requirement.

Evers’ emergency declaration that took effect Aug. 1, and another that took effect Sept. 22 and lasts for 60 days, were simply extensions of his first health emergency March 12, which expired May 11, said Anthony LoCoco of the Wisconsin Institute for Law & Liberty (WILL), which sued in Polk County Circuit Court August 25 to end the Aug. 1 emergency.

The law that allows Wisconsin’s governor to declare an emergency in response to a public health threat puts a time limit of 60 days on the declaration. The state Legislature can act to end the emergency before that time is up, but it can only be extended with the Legislature’s agreement, LoCoco told  St. Croix County Circuit Judge R. Michael Waterman, who is hearing the case.

“We’re dealing with the same virus that we were on day one,” LoCoco said. A new emergency declaration would have been possible only “if the virus is ever brought under control and years later returns.”

Arguing on behalf of the governor, Colin Hector, of the Wisconsin Department of Justice, said both the Aug. 1 and Sept. 22 health emergencies weren’t simply extensions of the earlier declaration, but were responding to specific new circumstances in the course of the pandemic.

“Wisconsin right now is in a very different and much worse situation than it has been even when compared to a few weeks ago,” Hector told the Judge. “If you look at September, the transmission rates have more than tripled. We’ve had 94 or more reported deaths in the past five days, we are now at an all-time high in terms of our average number of reported deaths on a daily basis.”

WILL’s original suit asked the court to throw out the Aug. 1 emergency declaration, but that has already expired at the end of September.

After a major spike in confirmed COVID-19 cases in September, Evers declared the new health emergency immediately on Sept. 22, briefly overlapping the previous one. WILL then sought a temporary injunction to block both of those and future COVID-19 emergency declarations.

The injunction motion was the subject of Monday’s hearing. The outcome could determine whether the statewide mask requirement, first instituted in the August emergency and instituted again with the Sept. 22 emergency, stands.

That, Hector said, was a strong argument for denying the temporary injunction. Stopping the emergency, and therefore the mask order, “would be removing what is right now the only statewide public health measure addressing the COVID-19 crisis,” he told the judge.

The hearing took place online and was livestreamed on YouTube, with Waterman in his courtroom, where he wore a mask as directed by the state court system to help prevent the spread of COVID-19, while lawyers for both WILL and Evers spoke from their offices.

WILL filed its lawsuit on behalf of three residents, two from Polk County, who “are aggrieved by this invasion of their liberty” that the mask order represents, LoCoco said.

“Every day that my clients are forced to comply with this order is a distinct harm,” he told the judge.

The state, though, is arguing that the plaintiffs have no direct grounds for claiming “harm” from the order, and no private right “to simply challenge a state of emergency declaration because [they] disagree with it,” Hector said.

While the state Legislature has the power to either endorse or to end the emergency, the Republican legislative leadership has not called the body into session since April. Despite the statements from several GOP lawmakers urging that they go back into session to undo Evers’ order, they have yet to do so.

Republican legislative leaders did file a brief siding with the WILL lawsuit, although they did not take part in Monday’s hearing.

Waterman said he would issue a written ruling soon, but not until reviewing the briefs and considering the attorneys’ arguments.

Erik Gunn
Senior Reporter Erik Gunn reports and writes on work and the economy, along with related subjects, for the Wisconsin Examiner. He spent 24 years as a freelance writer for Milwaukee Magazine, Isthmus, The Progressive, BNA Inc., and other publications, winning awards for investigative reporting, feature writing, beat coverage, business writing, and commentary. An East Coast native, he previously covered labor for The Milwaukee Journal after reporting for newspapers in upstate New York and northern Illinois. He's a graduate of Beloit College (English Comp.) and the Columbia School of Journalism. Off hours he is the Examiner's resident Springsteen and Jackson Browne fanboy and model railroad nerd.