March 12, Gov. Tony Evers declared a public health emergency in response to the growing COVID-19 pandemic and an uptick in positive cases throughout Wisconsin.
Under Wisconsin state law, such a declaration gives Evers special emergency powers to deal with the health emergency. These powers include implementing all measures deemed necessary to control the emergency, directing aid to those affected by said emergency and forbidding public gatherings in schools, churches and other places in order to control an epidemic.
In late March, Evers directed Department of Health Services Secretary Andrea Palm to implement a Safer At Home Order which prohibited many nonessential public gatherings. This order prohibited nonessential gatherings at schools, businesses and private residences.
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Under Wisconsin state law, a state of emergency order cannot be extended past 60 days. After that deadline, it must be passed by the state legislature. In mid-April, the Safer At Home Order, which was set to expire on April 26, was then extended to May 26.
Many Republican state lawmakers disagreed with Evers’ executive order and sued to block the extension of the stay at home order. According to The National Law Review, in May the Wisconsin Supreme Court ruled 4–3 to overturn the extension of the order.
According to the office of the governor, July 30 Gov. Evers issued a new executive order declaring the COVID-19 pandemic a Public Health Emergency. According to the Wisconsin State Journal, under this executive order, the governor issued a statewide mask mandate which would require people to wear masks inside almost all public buildings.
Deputy Counsel at Wisconsin Institute for Law and Liberty Lucas Vebber said their group is filing a lawsuit against Evers’ new state of emergency order.
“We are not challenging the mask mandate,” Vebber said. “We are challenging the governor’s declaration of a second state of emergency.”
Vebber said their group’s lawsuit is targeting the new state of emergency order because they believe it works as an extension of the old state of emergency order, which expired in May.
Vebber also said he believed the argument that the state of the pandemic has changed or has worsened is not accurate.
“What should have been done is to go to the legislature and say, this emergency is still ongoing, I need these powers, and to make his case,” Vebber said. “He has to be accountable to the legislative branch in order to use these powers.”
Vebber said their lawsuit addresses a separation of powers issue and is not a political stance on mask-wearing, and if the mandate were stricken down it would not affect individual county mask mandates.
“There are potential lawful and easy ways the governor could put a mask mandate on the books.” Vebber said. “He could ask the legislature to pass a law.”
Vebber said, as of now, WILL would like to have the mask mandate set aside as the litigation proceeds.
Professor at the University of Wisconsin Law School David Schwartz said he believes Evers is working within authority under Wisconsin state law relating to power and duties for emergency management and is not overstepping. Schwartz cited Wisconsin Statutes 323.10, which states if Evers believes there is a public health emergency, he is able to make an executive order declaring a “state of emergency related to public health” for the state or for certain groups within the state, according to the Wisconsin State Legislature website.
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Schwartz also said he believes, in this case, the governor is not acting irresponsibly, explaining that the new declaration was made more than a month after the original order expired.
“Nothing in the law says one emergency declaration per crisis,” Schwartz said. “Irrespective of how long the pandemic lasts or how much the circumstances change, a spike in cases can reasonably be seen as a new emergency.”
Vebber said WILL filed their complaint to the governor last week, thereby providing the Governor’s Office 45 days to respond to the complaint.
“Right now the ball is in the governor’s court, in terms of how to respond to the lawsuit,” Vebber said. “Once he responds to the lawsuit we will have a better idea of how it moves forward.”
