Our Perspective: Gov. Evers Issues Statewide Mask Mandate—This Is Not a Wisconsin Legislature v. Palm Redux.

Our Perspective: An Editorial

On July 30, Gov. Evers issued a new coronavirus emergency declaration, Executive Order #82, accompanied by Emergency Order #1 that requires everyone in Wisconsin to wear a mask indoors starting on August 1.

Showing remarkable flexibility, the governor will allow you to remove your mask while eating or drinking. Snarkiness aside, this order is not likely to be challenged; or if so, not successfully. Here’s why.

In May, the Wisconsin Supreme Court released its much-anticipated ruling, Wisconsin Legislature v. Palm, the legislature’s challenge to Evers’ shelter in place – “Safer at Home” – order. Emergency Order 28, issued by DHS Secretary Palm, was sweeping. It imposed state-wide restrictions on the healthy and sick alike, prohibited non-essential travel, shut down whole industry sectors, and “quarantined” healthy individuals in their homes. In a narrow 4-3 decision, the court threw it out because DHS failed to promulgate the order via Wisconsin’s administrative procedures act.

There are key distinctions between the Palm and Evers orders. First, who issues these orders has important political and legal significance. The recent Evers’ order arises out a declaration of a public health emergency allowed for under Section 323.10 of the Wisconsin Statutes. This was a successor to Evers’ previous emergency declaration that expired after 60 days.

While there is a legitimate issue as to the ability of a governor to essentially re-invoke an expired emergency declaration, the governor has substantially more power than a state agency in such instances. In the Palm decision, Chief Justice Roggensack, writing for the court, made this clear in her first paragraph: “This case is not about Governor Tony Evers’ Emergency Order or the powers of the Governor.”

It was not likely a coincidence that the court’s decision was issued a day or so after Evers’ first 60-day emergency declaration expired. That is, it appeared the court made a conscious decision not to consider the governor’s power under Chapter 323. (It’s one thing to rap a state agency on the knuckles; quite another to do so to a sitting governor.)

The Palm and Evers orders are also quite different in scope. Evers’ mask order is a mere inconvenience compared to the sweeping Palm order that shut down the entire state. And a mask mandate is certainly more rational than Palm’s attempt to parse out winners and losers with her arbitrary “essential” and “nonessential” tags. Moreover, violation of Palm’s order was a criminal offense, including the possibility of imprisonment. This was an important factor when the supreme court threw it out. Violation of the Evers mask order, however, is a civil forfeiture with a maximum fine of $200.

Finally, and most important, any challenger to the Evers’ order has a serious math problem. As noted, the Palm decision was 4-3, with Justice Hagedorn surprisingly siding with justices Dallet and Ann Bradley. Hagedorn thought this was a political fight better resolved by the legislature and the governor than the courts. Nothing suggests his position would change here. But something particularly important occurs on August 1 that will give Hagedorn, Dallet, and Ann Bradley some company.

Wisconsin’s Supreme Court 2020-21 term begins August 1, 2020. With the new term brings in a significantly different court. Conservative Justice Daniel Kelly is replaced by liberal Justice Jill Karofsky. We simply don’t see this court throwing out this order. Evers figured this out also, making the effective date of his order the same day Karofsky takes her seat on the Wisconsin Supreme Court. Elections matter.

So how does all this reconcile with our position that the legislative branch is predominant over the executive and judicial branches? Quite well. Any gubernatorial order declaring a state of emergency may be revoked at the discretion of the legislature by joint resolution. The governor has no authority to veto such joint resolution. That predominate power of the legislature to balance life and liberty works for us.

Bottom line: If you don’t like the mask order, call your legislator, not your lawyer.