The conservative legal organization fighting against Governor Tony Evers’ Covid-19 Emergency Order is vowing to appeal a decision by a St. Croix County judge.
Judge Michael Waterman ruled against the conservative Wisconsin Institute for Law & Liberty (WILL) and its clients in their request for a temporary injunction to stop Evers’ order. The lawsuit and the injunction request claimed Evers did not have the power to declare multiple emergencies concerning the same issue, in this case the Covid-19 pandemic.
The judge disagreed, in part because the legislature has refused to taken action themselves against the emergency order. Waterman wrote in his decision to not grant the temporary injunction:
“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.’ 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.”
Waterman also said that even though Evers can issue consecutive emergency orders, there are still checks in the system because the 60-day limit requires the governor, “to reexamine the situation and publicly identify existing, present-day facts and circumstances that constitute a public health emergency.”
If the legislature disagreed with the governor’s reasoning, the judge wrote, then it could repeal the emergency order.
Rick Esenberg, general counsel and President of WILL, disagreed with the judge in a statement issued after the ruling on Monday.
“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,” Esenberg said. “We look forward to making an appeal on this critical constitutional matter.”
Evers said in a statement Monday the ruling will help the administration’s efforts to contain the Covid-19 pandemic.
“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,” said Evers. “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.”
WILL’s plan for the appeal, whether or not it will be direct to the Wisconsin Supreme Court, was not announced Monday. Esenberg is scheduled to appear on WISN-AM to speak with conservative talk show host Jay Weber at 8:10 AM on Tuesday.
Evers issued his second emergency order regarding the Covid-19 pandemic on July 30. The emergency declaration allowed the Evers Administration to order a statewide mask mandate, requiring Wisconsinites to wear a mask in most indoor settings.
Another emergency order was issued by Evers on September 22 concerning the Covid-19 pandemic. This order allowed the Evers Administration to limit bars and restaurants to 25% capacity. The Wisconsin Restaurant Association estimates that half of the state’s restaurants could fold as a result of this order without additional assistance.
The Republican-controlled legislature has so far been reluctant to tackle the emergency orders directly, even though a joint resolution would be sufficient to repeal the orders. This is due to the mask mandate’s popularity and because a significant portion of the Republican base being opposed to any replacement for the governor’s order.
Instead, legislative leaders have chosen instead to support the lawsuit by WILL and to demand the Evers Administration submit their Covid-19 emergency orders through the rule-making process.
On Monday, the Joint Committee for Review of Administrative Rules (JCRAR) met to discuss Evers’ emergency orders. The committee voted to demand Evers’ Department of Health Services to submit the governor’s 25% capacity order for legislative review in the next 30 days, by November 11. The capacity order ends November 21.