St. Croix County judge lets Evers health emergency and mask orders stand

Wisconsin’s statewide mask requirement, and the broader health emergency under which it was declared, have survived an attempt to throw them out.

St. Croix County Circuit Judge R. Michael Waterman on Monday denied a motion seeking a temporary injunction against the emergency declaration as well as the mask order.

In his ruling, Waterman rejected the argument that Gov. Tony Evers could only declare one 60-day health emergency because of the COVID-19 pandemic before having to get the approval of the state Legislature, observing that lawmakers have yet to act to block his actions.

“Nothing in the statute prohibits the governor from declaring successive states of emergency,” Waterman wrote. “Instead, the statute allows a declaration ‘if the governor determines that a public health emergency exists.’ That language gives the governor broad discretion to act whenever conditions in the state constitute a public health emergency.”

Citing the May 13 ruling by the Wisconsin Supreme Court, Waterman acknowledged that “the governor cannot rely on emergency powers indefinitely,” but added that “he can when a public health emergency exists and the legislature lets him do it.”

While the Wisconsin Legislature’s Republican leaders have issued statements claiming Evers acted illegally in declaring new health emergencies because of the pandemic effective Aug. 1 and again Sept. 22, they have not followed through on threats to call the body into session to repeal those executive orders, nor the mask orders that were issued under them.

“Judge Waterman put the ball squarely in Republicans’ court today, which is not a comfortable place for them to be,” Philip Rocco, a Marquette University political scientist who has researched polarization in the context of health policy, told the Wisconsin Examiner after the ruling was issued. “A supermajority of Wisconsin voters think that masks should be required in public places. While Republicans might want to use the courts to further cabin the governor’s authority, it’s going to be hard for many of them to go on record voting against a mask requirement.”

In a poll conducted earlier this month by Marquette Law School, 72% of state residents said they favor requiring masks in public places to prevent the spread of COVID-19.

The Wisconsin Institute for Law and Liberty (WILL), the conservative law firm that brought the lawsuit on behalf of three northwestern Wisconsin residents, had argued that after Evers’ first 60-day order addressing COVID-19 ended May 11, the governor would have to get the Legislature’s assent to any further health orders unless the pandemic had gone away, then returned. Waterman denied that interpretation.

“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 wrote.

Evers’ office welcomed the decision.

“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,” the governor stated. “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. We ask Wisconsinites to please stay home as much as possible, limit travel and going to public gatherings, and wear a mask whenever out and about.”

WILL President Rick Esenberg stated the organization would appeal what he called a “critical constitutional matter” of whether “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.”

The lawsuit is in Polk County Circuit Court, but Waterman, who was appointed by former Gov. Scott Walker in 2015, was assigned the case after Polk County judges recused themselves.