TL;DR: Keep wearing your damn masks.
On Monday morning, St. Croix County Judge Michael Waterman delivered his decision in a case that sought to overturn Gov. Tony Evers’ declared COVID-19 public health emergency, as well as his current statewide mask mandate. The initial lawsuit was filed by conservative legal group Wisconsin Institute for Law and Liberty (WILL), on behalf of two Polk County residents and one St. Croix County resident.
“The plaintiffs are three private citizens, who are seeking redress for injuries they have suffered from Executive Order 90,” wrote Waterman in his decision. “Their requested injunction goes well beyond their private interests, though.”
Waterman heard the case last week. Throughout arguments, the judge questioned why Wisconsin’s judiciary branch was being asked to intervene in a matter that could be—and had not been—handled by the legislature. “They could do it tomorrow if they wanted to,” Waterman said of the legislature’s power to invalidate the mask mandate.
Waterman’s decision continued to address the legislature’s inaction.
“If granted, the temporary injunction will 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,” Waterman wrote. “The legislature can end the state of emergency at anytime, but so far, it has declined to do so. As the statewide representative body of the citizens of Wisconsin, the legislature’s inaction is relevant and it weighs against judicial intervention, especially when the requested intervention will have statewide impact. For these reasons, the motion for a temporary injunction is denied.”
The attorney representing WILL, Anthony LoCoco, offered a curious explanation for the legislature’s inaction.
“The legislature has already spoken,” LoCoco said during arguments last week. “It’s told us that inaction by the legislature must be read to mean that the legislature does not consent to a renewal.”
Despite Monday’s decision, Gov. Evers’ power to issue multiple emergency orders during a single pandemic, as well as a mask mandate, may still be challenged. The Milwaukee Journal Sentinel ominously notes: “Nearly a dozen GOP lawmakers told the Milwaukee Journal Sentinel they would vote to end the health emergency order, and mask mandate, if the lawsuit didn’t go their way.”
And oh yeah, WILL plans to appeal the decision, natch.
“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,” WILL President Rick Esenberg said in a statement. “We look forward to making an appeal on this critical constitutional matter.”
Here’s Waterman’s full decision:
The plaintiffs commenced this suit to challenge the governor’s authority to issue Executive Order 90, which declared a public health emergency related to COVID-19. Section 323.10 allows the governor to declare a public health emergency for up to 60 days, unless extended by the legislature. The plaintiffs believe that the governor exceeded his statutory authority by declaring public health emergencies on three separate occasions, each related to the same health crisis – COVID-19. By doing so, the plaintiffs argue, the governor has exceeded his authority by essentially extending a state of emergency past 60 days. The plaintiffs ask for a temporary injunction while their case plays out in the courts.
Temporary injunctions are not issued lightly. “Temporary injunctions are to be issued only when necessary to preserve the status quo.” Werner v. A. L. Grootemaat & Sons, Inc., 80 Wis. 2d 513, 520, 259 N.W.2d 310, 313–14 (1977). Temporary injunctions freeze the litigants’ condition until the merits of the case can be adjudicated at a final hearing. Plaintiffs in this case don’t ask to preserve the status quo; they ask to change it. They ask the Court to give them the ultimate relief sought in their lawsuit – i.e. termination of Executive Order 90. The Supreme Court has stated on several occasions that where the issuance of a temporary injunction would have the effect of granting all the relief that could be obtained by a final decree, and would practically dispose of the whole case, it ordinarily will not be granted unless the complainant’s right to relief is clear. Codept, Inc. v. More-Way N. Corp., 23 Wis. 2d 165, 172, 127 N.W.2d 29, 34 (1964).
The plaintiffs’ right to relief is not clear. Although the plaintiffs agree that COVID-19 constitutes a public health emergency, they believe that the governor may not issue successive executive orders for the same emergency without violating the 60-day limit of section 323.10. To reach that conclusion, the governor argues, one must deviate from the language of the statute and find meaning that is not expressed by the text. The Court agrees. Nothing in the statute prohibits the governor from declaring successive states of emergency. Instead, the statute allows a declaration “if the governor determines that a public health emergency exists.”1 That language gives the governor broad discretion to act whenever conditions in the state constitute a public health emergency. Although “the governor cannot rely on emergency powers indefinitely,” Wisconsin Legislature v. Palm, 2020 WI 42, ¶ 41, 391 Wis. 2d 497, 942 N.W.2d 900, he can when a public health emergency exists and the legislature lets him do it.
(1 A “public health emergency” means the occurrence or imminent threat of an illness or health condition that meets the criteria of Wis. Stat. § 323.02(16), including a novel biological agent that poses a high probability of a large number of deaths, serious long term disabilities, or widespread exposure that creates a significant risk of substantial future harm to a large number of people.)
The plaintiffs disagree with this reading of the plain text. They counter that the 60-day limit becomes meaningless if the governor can declare successive states of emergency for the same crisis. That’s incorrect. The 60-day limit serves an important function even if the governor can make successive orders. A finite executive order prevents the governor from perpetuating emergency powers after the emergency has dissipated. When an executive order ends after 60 days, it forces the governor, before issuing another order, to reexamine the situation and publicly identify existing, present-day facts and circumstances that constitute a public health emergency. 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. And, if the legislature is unconvinced that a state of emergency does exist, the legislature has the ultimate power to terminate it. Wis. Stat. § 323.10. (“The executive order may be revoked at the discretion of either the governor by executive order or the legislature by joint resolution.”)
That brings the Court to the final point: balancing the equities. The plaintiffs are three private citizens, who are seeking redress for injuries they have suffered from Executive Order 90. Their requested injunction goes well beyond their private interests, though. If granted, the temporary injunction will 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. The legislature can end the state of emergency at anytime, but so far, it has declined to do so. As the statewide representative body of the citizens of Wisconsin, the legislature’s inaction is relevant and it weighs against judicial intervention, especially when the requested intervention will have statewide impact.
For these reasons, the motion for a temporary injunction is denied.