Updated at 4:48 p.m. CT
A Wisconsin judge on Monday allowed the state’s mask mandate to stand, rejecting an attempt by the Republican-controlled Legislature and a conservative law firm to overturn it, even as coronavirus cases spiked and the number of people hospitalized with COVID-19 hit a new high.
The judge noted in his ruling that lawmakers could vote to overturn Democratic Gov. Tony Evers' order, but haven’t so far. Evers sent Republican legislative leaders a letter hours after the ruling asking them to drop the lawsuit and "work together on our state's greatest challenges.”
Noting a spike in cases, and the opening of a field hospital to provide additional capacity for coronavirus patients, Evers urged Republicans to “start taking this seriously.”
Republican legislative leaders did not immediately return messages seeking comment. The Legislature filed a brief in support of the lawsuit. Also Monday, a Republican-led legislative committee took the first steps to overturn another order Evers issued last week setting capacity limits for business.
The Wisconsin Institute for Law and Liberty, which filed suit against the mask mandate, will appeal, said the group's president Rick Esenberg. He did not say if they would attempt to skip the state appeals court by asking the conservative-controlled Wisconsin Supreme Court to take the case. Esenberg called the issue a “critical constitutional matter.”
The lawsuit argued that Evers overstepped his authority by issuing multiple emergency orders to curb the coronavirus pandemic. It also said masks are ineffective since Wisconsin’s infection numbers have continued to rise since Evers’ mandate was imposed. Evers defended the mask order, saying it was within his power to impose the requirement and that he followed the recommendations of public health experts.
St. Croix County Circuit Judge R. Michael Waterman said in his ruling that nothing prevents a governor from issuing multiple emergency declarations “when the emergency conditions continue to exist.”
“And, if the Legislature is unconvinced that a state of emergency does exist, the Legislature has the ultimate power to terminate it,” the judge said.
Evers called the ruling a victory in the fight against COVID-19.
“We will continue doing everything we can to prevent the spread of this virus,” he said. “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.”
The judge also noted that overturning the mask mandate would “affect every person in Wisconsin by a judicial act that usurps the governor’s power to declare a state of emergency and the Legislature’s power to end one.”
Evers first declared a public health emergency in March and renewed it in July after the Legislature declined to extend it. The July order mandated the wearing of masks starting in August for anyone aged 5 and up in all enclosed spaces except at home. He issued another order in September that extended the mask mandate until Nov. 21. Violators could be subject to a $200 fine.
Wisconsin is among the nation's worst COVID-19 hot spots, with more than 152,000 positive cases as of Monday. The seven-day average of new confirmed cases reached a record high of 2,547, up from 2,395 a week ago, the state Department of Health Services said. Medical experts have attributed Wisconsin’s spike to colleges and K-12 schools reopening and general fatigue with virus restrictions.
The number of people hospitalized due to COVID-19 in Wisconsin also hit a record high on Monday at 950, according to the Wisconsin Hospital Association. The previous high was 907 set just four days earlier. Monday’s total was up by 61 from the day before and 168 over the past seven days.
Republican legislators in May succeeded in getting the conservative-controlled Wisconsin Supreme Court to strike down Evers’ virus-related stay-at-home order. The high court ruled that the Evers administration had overstepped its authority when it extended the order without consulting lawmakers.
Republican legislators in other states have skirmished repeatedly with Democratic governors over their powers during the pandemic. In neighboring Michigan, the conservative-majority state Supreme Court ruled that the law underpinning Gov. Gretchen Whitmer’s response to the pandemic was unconstitutional.