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Northwestern Wisconsin judge considering striking down statewide mask mandate
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Northwestern Wisconsin judge considering striking down statewide mask mandate

Mask order

Mask use is already common in Madison, including along congested State Street.

As Wisconsin continues to be a COVID-19 hotspot, a St. Croix County judge is weighing whether to strike down Gov. Tony Evers’ statewide mask mandate in response to a lawsuit brought by a conservative legal group.

St. Croix County Judge R. Michael Waterman heard arguments Monday afternoon but declined to rule immediately from the bench. He could grant an immediate injunction anytime to temporarily halt enforcement of the mask mandate while the case proceeds in circuit court.

Waterman issued few hints as to how he will rule, asking pointed questions of both the attorneys for several taxpayers, the plaintiffs in the case, and a lawyer representing Evers, the defendant.

Waterman or the Wisconsin Court of Appeals, however, could issue a stay on the injunction keeping the mask mandate in place while the case works its way potentially all the way up to the Wisconsin Supreme Court. Waterman said he expects to rule on the immediate injunction “very very quickly.”

“You have both given me a lot to think about,” Waterman said. “This isn’t an easy issue, this is a very complicated legal issue involving statutory interpretation, constitutional implications and other things.”

The Wisconsin Institute for Law and Liberty filed the lawsuit in August in Polk County Circuit Court. It seeks to halt enforcement of both the public health emergency declaration Evers made on July 30 and extended on Sept. 22 as well as the statewide mask mandate. WILL amended its lawsuit Sept. 28 and also sought an immediate, temporary injunction. Waterman is hearing the case after both Polk County judges recused themselves.

The Republican-controlled Legislature has the power to revoke Evers’ mask order but has not done so. That was a point Waterman focused on heavily during Monday’s hearing.

Attorney Colin Hector, representing Evers, said it’s the Legislature’s job to revoke the mask order if it wants to, and that the case shouldn’t be dealt with in the courts.

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Anthony LoCoco, a WILL attorney representing the plaintiffs, said the fact the Legislature has not revoked the mask mandate doesn’t matter because Evers in such an instance could swiftly re-issue the order by tweaking its language.

Evers has used the public health emergency as a basis to order mask wearing. The original mask mandate ran from Aug. 1 through Monday.

Evers’ emergency declaration lies at the heart of the case, with WILL contending Wisconsin law doesn’t allow Evers to seize emergency powers more than once to address the same crisis. Evers for a third time declared a COVID-19 emergency on Sept. 22 and extended the mask mandate until Nov. 21.

In the days since the extension, Wisconsin has continued to battle some of the highest per capita rates of new COVID-19 cases in the nation.

A record 714 people were hospitalized for COVID-19 in Wisconsin as of Sunday, with the tally growing more than 2.5 times in the last month and coming closer to what a hospital official said could be “crisis stage.”

Dane County had a record 47 patients in the hospital with the coronavirus on Sunday, up from its previous peak of 46 in early April.

Evers first declared a public health emergency in March due to COVID-19, and it ran until May 11, with Republicans in the Legislature declining to extend it. In July, Evers declared a second COVID-19 public health emergency and issued his first statewide mask mandate along with it.

The lawsuit was filed by WILL on behalf of two residents of Polk County and one resident of St. Croix County, one of the latest legal battles over the governor’s attempts to minimize the spread of the novel coronavirus. Both Polk County judges recused themselves from the case.

The lawsuit alleges that state law forbids a governor from unilaterally extending a public health emergency beyond 60 days or by declaring multiple emergencies in response to the same crisis. The group did not originally file for an immediate injunction to stop enforcement of the governor’s mask mandate.

The Evers administration has countered that the lawsuit represented the latest challenge by Republicans against the governor’s efforts to follow science and public health in order to protect Wisconsinites during the ongoing pandemic.

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