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Judge weighing temporary injunction on Evers’ mask mandate

The Polk Co. judge said a new order would be coming soon
Published: Oct. 5, 2020 at 4:30 PM CDT|Updated: Oct. 6, 2020 at 9:47 AM CDT
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MADISON, Wis. (WMTV) - A Polk Co. judge heard arguments Monday on whether or not he should temporarily block Gov. Tony Evers' emergency health declaration and mask mandate.

As both sides concluded, Judge Michael Waterman complimented both sides on their briefings, but did not issue a ruling on the temporary injunction, saying he still had some things to consider. He added that he expects to issue a written decision “very, very quickly.”

The Wisconsin Institute for Law and Liberty (WILL) pushed for the injunction in a court filing last week. The move came a month after the conservative law group challenged the order on behalf of three Wisconsin residents on August 25, contending that a governor is not empowered to issue emergency orders more than once for the same crisis.

Waterman told both sides he had been wrestling with the issue over the weekend, noting that orders are limited to 60 days unless the legislature extends or terminates it. Noting that the legislature’s power appears to be “without qualification,” the judge wondered if the judiciary should even rule on the matter or if it was conflict of separation of powers.

Repeated Orders?

WILL’s attorney Anthony LoCoco argued, however, that the governor cannot repeatedly issue emergency orders and continually extending them, saying that would give the executive nearly unlimited power. He said the legislature’s inaction showed they did not want the order extended.

Conversely, Wisconsin’s Assistant Attorney General Colin Hector replied that the massive surge of new cases since the beginning of September falls within the definitions of a public emergency. He compared it to issuing an emergency order if a river floods, arguing that if it floods, recedes, then rampages, a governor cannot decide if it’s a new disaster.

The recent spike constitutes a new basis for an emergency, he told the court. The pandemic is not one overarching disaster; instead, it contains reasons for disaster declarations in it.

He also pointed to the legislature and turned around LoCoco’s point, saying if the legislature wanted it revoked it could do it.

“Intrusive Actions”

In making his case, LoCoco described the governor’s order that people wear something over their face and mouths as “intrusive actions.” He claimed his clients were aggrieved by being told to wear masks.

He declared the order was an invasion of the plaintiffs' liberty and that fact should not be diminished. That their rights were on the line, he argued, was one reason the matter belonged in the court - addressing Waterman’s separation of powers concerns.

Hector said LoCoco’s description of his plaintiffs implies they may not even be wearing masks themselves and therefore would not be suffering any harm.

He also reminded Waterman that by blocking the order, the judge would be striking down the only statewide measure addressing the COVID-19 crisis.

“These two issues are not even in the same ballpark,” Hector said.

correction: An earlier version of this story incorrectly spelled Anthony LoCoco's name as LaCoco. It has since been corrected.

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