Lawmakers, health departments respond to mask mandate; Lawsuit from legislature unlikely

Published: Jul. 30, 2020 at 5:54 PM CDT
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WAUSAU, Wis. (WSAW) - A legal challenge to Governor Tony Ever’s mask mandate issued Thursday is unlikely to come from the legislature after Assembly Speaker Robin Vos cited expected legal challenges from “citizen groups” in a statement Thursday. Relying on a different set of legal powers than the Safer at Home order overturned earlier this year in the state Supreme Court, the governor’s order relies on emergency powers provided under state law.

The governor issued the order under a new public health emergency, which opponents argue was outside his power; the mandate goes into effect on August 1 and applies statewide to anyone away from their home. Mandated mask wearing (with limited exceptions) applies indoors, while not eating or drinking, and is strongly recommended outdoors. Wisconsin joins more than 30 other states with similar orders, but it’s not likely it will go unchallenged.

Exemptions include children under five, members of the state legislature and judiciary, and people delivering public reports while more than six feet away from other people during events like press conferences or delivering the news.

The mandate will take effect Saturday, the same day liberal-backed and newly-elected justice Jill Karofsky is sworn in to the state Supreme Court, taking the place of conservative Dan Kelly who was one of four justices overturning the governor’s order in May. Narrowing the margin of conservative power to 4-3, Justice Brian Hagedorn departed from his conservative colleagues in that decision, writing in a dissenting opinion that the legislature had no grounds to bring the lawsuit.

“We could probably see Justice Hagedorn’s dissenting opinion as a shot across the bow,” UW-Stevens Point political science chair Professor John Blakeman noted. “That might be just enough to deter the legislature from litigating the case that way.”

Leaving it to private groups to bring legal challenges was the implication from Assembly Speaker Robin Vos, who--along with many Republican colleagues in the state capitol--opposed the mandate but did not indicate legal action of the sort the legislature brought in May.

“It’s disappointing that yet again Governor Evers has chosen to not communicate or work with the legislature,” Vos said in a prepared statement. “There are certainly constitutional questions here; I would expect legal challenges from citizen groups.”

Professor Blakeman noted that challenges arriving from the private sector are likely to take longer than the suit brought by the legislature, which benefited from a longstanding tradition where co-equal branches of government can bypass lower courts and bring a case straight to the state supreme court level. The private groups that are more likely to bring a lawsuit, he noted, must first build up a trial record in lower courts--a process that could mean at least two to three more weeks.

When reached for comment, the executive director of the Tavern League of Wisconsin noted they are reviewing the mandate for legality and will be putting out a statement on Friday. Additionally, the Wisconsin Institute for Law and Liberty indicated the conservative group is also reviewing the mandate for constitutionality.

“Wearing a mask is courteous and smart. But the presence of a pandemic does not negate the rule of law,” WILL President & General Counsel Rick Esenberg said in a statement. “Governor Evers, quite simply, lacks the legal authority to declare a second public health emergency and require every citizen to wear a mask.”

Meanwhile, some lawmakers and citizens are pushing for the legislature to convene a special joint session to vote down the emergency order.

“I’m also gauging the interest of my caucus when it comes to voting down the order,” senate leader Scott Fitzgerald noted. “The Legislature should be reconvening to look at this.” The legislature has not taken up

While state lawmakers and advocacy groups speak out in opposition to the order, county health departments are relieved to have the state take on the burden of guidance.

Portage County executive Chris Holman noted in a press release, “However one feels about the virus and any of the issues surrounding our state and local responses to it, it has become abundantly clear over the past few months that counties and municipalities benefit from having guidance from the state on an issue that should be handled at the state level.”

“I think what the statewide mandate is going to do for us is create a level playing field,” Judy Burrows with the Marathon County Health Department noted. “I’m actually hoping that this executive order with masks will make our work easier; on a daily basis we are inundated with new cases of (COVID-19), and masks can help protect the spread.”

Marathon County leads northern and central Wisconsin in number of cases with 532 confirmed, more than 200 active, and five deaths. Statewide, more than 1,000 active cases were reported Thursday.

In Central Wisconsin, protests are already being planned, with the group behind a large state-reopening rally in Mosinee in April now planning a protest against the masks on August 8, according to their Facebook page, which also called on lawmakers to reconvene to vote down the order.

“If you want to wear a mask, wear one,” an organizer for the page told NewsChannel 7 in reference to the rally’s message. “If I don’t want to, my choice.”

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