Wisconsin judge upholds mask order for enclosed spaces

A Wisconsin judge on Monday allowed the state’s mask mandate to stand, rejecting an attempt by the Republican-controlled Legislature and a conservative law firm to overturn it, even as cases are spiking.

The judge noted in his ruling that the Legislature could vote to overturn the order from Democratic Gov. Tony Evers if they wanted to, but they haven’t so far.

The Wisconsin Institute for Law and Liberty, which brought the case, will appeal, said the group’s president Rick Esenberg. He did not say if they would attempt to skip the state appeals court by asking the conservative-controlled Wisconsin Supreme Court to take the case. Esenberg called the issue a "critical constitutional matter."

Republican legislative leaders did not immediately return messages seeking comment. The Legislature filed a brief in support of the lawsuit.

The lawsuit argued that Evers overstepped his authority by issuing multiple emergency orders to curb the coronavirus pandemic. Evers defended the mask order, saying it was within his power to impose the requirement and that he followed the recommendations of public health experts.

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Evers called the ruling a victory in the fight against COVID-19.

"We will continue doing everything we can to prevent the spread of this virus," Evers said. "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."

Evers released the following statement Monday morning:

"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. 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."

St. Croix County Circuit Judge R. Michael Waterman said in his ruling that nothing prevents a governor from issuing multiple emergency declarations "when the emergency conditions continue to exist."

"And, if the Legislature is unconvinced that a state of emergency does exist, the Legislature has the ultimate power to terminate it," the judge said.

The judge also noted that overturning the mask mandate, in place since August, would "affect every person in Wisconsin by a judicial act that usurps the governor’s power to declare a state of emergency and the Legislature’s power to end one."

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Wisconsin Attorney General Josh Kaul, a Democrat, praised the ruling and encouraged Republicans to "stop supporting this attack on the mask requirement and instead to work with Governor Evers to adopt statewide policies that will allow us to more effectively to fight the virus and keep Wisconsinites safe."

Evers first declared a public health emergency in March and renewed it in July after the Legislature declined to extend it. The July order mandated the wearing of masks starting in August for anyone aged 5 and up in all enclosed spaces except at home. He issued another order in September that extended the mask mandate until Nov. 21. Violators could be subject to a $200 fine.

The lawsuit argues that Evers can issue only one emergency declaration per crisis. Attorney Anthony LoCoco said during a hearing last week t hat the multiple declarations amount to a power grab and that the mask mandate is an "invasion" of personal liberty.

The lawsuit also argued that masks are ineffective since Wisconsin’s infection numbers have continued to rise since Evers’ mandate was imposed.

Assistant Attorney General Colin Hector argued for the state that the three orders were designed to address the growing pandemic.

Wisconsin is among the worst COVID-19 hot spots in the country, topping more than 150,000 positive cases on Sunday. Medical experts have attributed Wisconsin’s spike to colleges and K-12 schools reopening and general fatigue with precautions such as wearing masks and socially distancing.

The rising tide has some hospitals nearing capacity, especially in northeast and central Wisconsin, and the governor’s office has announced the activation of a field hospital at the state fairgrounds to accommodate the increase in patients.

Republican legislators in May succeeded in getting the conservative-controlled Wisconsin Supreme Court to strike down Evers’ virus-related stay-at-home order. The high court ruled that the Evers administration had overstepped its authority when it extended the order without consulting lawmakers.

Republican legislators in other states have skirmished repeatedly with Democratic governors over their powers during the pandemic. In neighboring Michigan, the conservative-majority state Supreme Court ruled that the law underpinning Gov. Gretchen Whitmer’s response to the pandemic was unconstitutional.