Empower Wisconsin | Oct. 13, 2020
By M.D. Kittle
MADISON — Gov. Tony Evers got a pass Monday to “rule by decree,” according to the civil liberties law firm that took the Democrat to court over his administration’s controversial health order.
St. Croix County Circuit Court Judge R. Michael Waterman denied a motion seeking a restraining order against the Democrat’s Order #90, which includes the extension of his statewide mask mandate.
The Wisconsin Institute for Law & Liberty (WILL) intends to appeal the decision.
“It is with regret that the Judge held that 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. We look forward to making an appeal on this critical constitutional matter,” Rick Esenberg, WILL’s president and general counsel, said in a statement.
The Milwaukee-based public interest law firm argues that state law is clear, restricting the governor from issuing emergency orders for no longer than 60 days. In May, the Wisconsin Supreme Court struck down the Evers administration’s extended statewide lockdown order, finding the governor’s health chief broke state law by not seeking the approval of the Legislature in extending the emergency order.
In a hearing before Waterman last week, WILL deputy counsel Anthony LoCoco said the administration has issued several orders, including the mask mandate, in violation of state law and the Supreme Court ruling.
“The governor cannot rely on emergency powers indefinitely,” the attorney said, quoting from the Supreme Court’s ruling. What’s the point in having a statue limiting the executive’s authority if the governor is simply going to ignore it, LoCoco added.
“The pandemic is being permitted to override the rule of law” and the constitution, he said.
Assistant Attorney General Colin Hector, defending Evers, Palm and Department of Administration Secretary Joel Brennan, argued the administration has issued new orders as needed to deal with a changing health emergency.
Waterman seemed to agree.
“Nothing in the statute prohibits the governor from declaring successive states of emergency,” he wrote in his ruling.
The judge insists the language in state statute gives the governor “broad discretion to act whenever conditions in the state constitute a public health emergency.”
Such “broad discretion” is a scary proposition. Evers, in essence, could define anything as a health emergency and take individual liberties with it.
Waterman acknowledges the “governor cannot rely on emergency powers indefinitely.” But he adds the executive may do so when a “public health emergency exists and the legislature lets him do it.”
The judge drove home the last point, writing that the Republican-controlled Legislature could make the order, or any of the governor’s orders, disappear by returning to session and passing a joint resolution.
The Legislature’s Joint Committee for Review of Administrative Rules’ (JCRAR) executive committee did meet on Monday, voting 6-4 to direct the Department of Health Services to promulgate an emergency rule from Palm’s order last week that limits public gatherings to 25 percent capacity.
DHS has 30 days to do so. The order is expected to expire before the rule-making deadline.