Empower Wisconsin | Oct. 6, 2020
By M.D. Kittle
MADISON — St. Croix County Judge R. Michael Waterman says he will soon decide whether to halt Gov. Tony Evers’ latest emergency health order and mask mandate.
The judge on Monday heard oral arguments in the case of three Polk County men challenging the legality of Evers’ edicts. Waterman stepped in after two Polk County judges recused themselves.
Attorney Anthony LoCoco, deputy counsel for the Wisconsin Institute for Law & Liberty, the Milwaukee civil rights firm representing the plaintiffs, told Waterman that the case isn’t about whether COVID-19 is a serious health threat, but whether the governor has the authority to issue a series of public health orders without the Legislature’s consent.
He cannot. State law and the Wisconsin Supreme Court have already decided as much, LoCoco said.
The attorney pointed to statute, which clearly states that 60 days after the governor issues a public health order, as Evers did in March, he must seek the approval of the Legislature to continue the order. The Supreme Court in May struck down Department of Health Services Secretary-designee Andrea Palm’s extension of Evers’ original emergency edict, finding the action in violation of state law.
Evers has since issued new emergency declarations, adding a statewide mask mandate in August and again in September.
LoCoco argues Evers is governing by decree, piling on one order after another in defiance of state statute 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 health orders are not serialized, but separate declarations to deal with spikes in COVID-19 cases. He warned of the devastation that would be wrought if Evers’ mask mandate is overturned.
He said the plaintiffs’ “narrow reading” of the statutes is absurd, insisting that it was like saying the governor could not issue subsequent emergency orders after a rampaging river subsided and then rose again.
LoCoco countered that if the governor can issue a public health emergency whenever he thinks circumstances dictate, the executive branch would have “almost unlimited unilateral power.” Governors could issue orders and take away individual liberty for anything they deem in the “public interest” — at any time. More so, a governor and Legislature of the same party could work together to keep ongoing orders in place, if courts don’t check overreaching first and second branches, LoCoco argued.
Hector said the “irreparable harm” of the many citizens counting on Evers to protect them from the virus through mask mandates would be considerably greater than the harm caused to the three plaintiffs forced to wear masks.
He did concede that Evers would be exceeding his authority if he issued a spate of successive emergency orders. Waterman asked, “Isn’t that what the plaintiffs’ attorneys are arguing here?” Yes, it is. Hector insisted that the “arguments were not supported by the facts on the record.”
Waterman said he’s wrestled with one question: Why didn’t the Republican-led Legislature just go into session and stop Evers’ orders. They need only pass a joint resolution.
“They could do it tomorrow if they wanted to,” the judge said.
The majority last week filed a motion in support of the lawsuit. LoCoco said the Legislature already acted when it adopted the statute limiting initial emergency orders to 60 days. He said the Republicans have noted they don’t want to have to come into session over and over again to stop the governor from acting unilaterally. After the order expires, LoCoco said, that should be the end of the matter, unless the governor and Legislature can work together. Republican leadership did try to work with Evers on a new public health policy after the Supreme Court struck down his administration’s order. Evers asked for liberty restrictions that Republican leadership couldn’t agree to, according to the governor’s secret recordings of the meeting. He quickly ended any attempt to have the DHS promulgate new policy.
Waterman said he would take the matter under advisement, appreciating the time sensitivity of the question. He said he would issue a decision “very quickly.” The decision is likely to be appealed.