Judge promises quick decision on Wisconsin mask mandate

MADISON, Wis. - A Wisconsin judge heard arguments Monday in a lawsuit aimed at suspending Democratic Gov. Tony Evers' mask mandate but didn't immediately rule, saying he needs to think about it as COVID-19 surges across the state.

St. Croix County Circuit Judge R. Michael Waterman promised to quickly deliver a written decision on a temporary injunction that would block the mandate. He didn’t elaborate.

Governor Tony Evers

Waterman is considering a lawsuit filed by the Wisconsin Institute for Law and Liberty in August seeking to strike down the mandate. The conservative law firm last week asked for a temporary injunction to block the mandate pending a decision in the case.

The lawsuit argues on behalf of three plaintiffs that Evers has issued three emergency declarations since the pandemic began, with the last two mandating masks in enclosed spaces. It contends Evers can't issue multiple emergency declarations to address the same crisis without legislative approval.

Waterman held a hearing Monday afternoon on the temporary injunction request.

Anthony LoCoco

Attorney Anthony LoCoco argued that the multiple declarations amount to a power grab and that the mask mandate is an “invasion” of personal liberty. Assistant Attorney General Colin Hector argued that the three orders were designed to address the pandemic as it has grown worse.

Attorney General Colin Hector

“The data here is screaming out. Unfortunately, Wisconsin is in a very different and much worse situation than it has been," Hector said. “They're categorizing this as the same old pandemic. That is demonstrably not the case.”

Waterman conducted the hearing via video conference but still wore a mask himself. At one point he questioned what recourse “ordinary people” have when the governor extends his emergency powers unilaterally but stopped short of ruling from the bench.

He promised to issue a written order on a temporary injunction “very, very quickly” but didn't say when.

St. Croix County Circuit Judge R. Michael Waterman

“You’ve both given me a lot to think about,” he said.

Wisconsin has become one of the worst COVID-19 hot spots in the country since July, ranking third nationwide in new cases per capita over the past two weeks as of Sunday. Medical experts have attributed Wisconsin’s spike to colleges and K-12 schools reopening and general fatigue with precautions such as wearing masks and social distancing.

The state Department of Health Services reported 1,696 confirmed new cases on Monday. That’s down from 1,865 on Sunday and a record 2,892 cases on Saturday. The state has reported 134,359 cases since the pandemic began.

The DHS reported four more people have died, bringing the death toll to 1,381. As of Sunday 714 people were hospitalized, with 194 of them in intensive care, according to the Wisconsin Hospital Association.

Evers issued his first emergency declaration in March. That order included a stay-at-home mandate. The conservative-leaning state Supreme Court struck it down in May. The governor issued another emergency declaration in July, which included a mask mandate. He issued a third order last month extending the mask mandate until Nov. 21. The governor has said he's following the advice of public health experts.

Republican-controlled legislators in other states have skirmished repeatedly with Democratic governors over their powers during the pandemic. In neighboring Michigan last week, the conservative-majority state Supreme Court ruled that the law underpinning Gov. Gretchen Whitmer’s response to the pandemic was unconstitutional.