Wisconsin Mask Order Remains In Place, Judge Denies Injunction

POLK COUNTY, WI—A judge ruled Monday against the plaintiffs who challenged the governor’s authority to issue Executive Order 90, which declared a public health emergency related to COVID-19.

The judge put the responsibility on the Legislature to vote to overturn it.

The plaintiffs argued the governor has exceeded his authority by extending a state of emergency past 60 days. The plaintiffs also believe the 60-day limit becomes meaningless if the governor can declare successive states of emergency for the same crisis.

However, in his ruling, the judge wrote that nothing in the statute prohibits the governor from declaring successive states of emergency.

“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 judge wrote.

The 60-day limit provides a 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, he explained.

The plaintiffs asked for a temporary injunction while their case plays out in the courts.

However, the judge wrote that they asked the court to give them the ultimate relief sought in their lawsuit, 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,” Circuit Court Judge, R. Michael Waterman, wrote.

In closing his opinion, Judge Waterman touched on what he described as “balancing the equities”. He noted 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,” he wrote.

In a response to what Governor Tony Evers described as a “temporary restraining order pursued by Wisconsin Institute for Law and Liberty and supported by Republicans in the Legislature to enjoin the governor's public health emergency” Governor Evers wrote:

“Today’s ruling is a victory in our fight against COVID-19 and our efforts to keep the people of Wisconsin safe and healthy during this unprecedented crisis. As the number of COVID-19 cases in Wisconsin reached 150,000 yesterday, we will continue doing everything we can to prevent the spread of this virus. We ask Wisconsinites to please stay home as much as possible, limit travel and going to public gatherings, and wear a mask whenever out and about.”