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‘We can’t let up’: Evers, lawmakers react to Wisconsin Supreme Court ending mask order

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MADISON (WKOW) -- Within minutes of the Wisconsin Supreme Court striking down Governor Tony Evers' statewide mask order Wednesday, reaction flooded in from lawmakers and Evers himself.

While making an appearance with a crew filling potholes in Wausau, Evers maintained the court misread state law and should've treated his rolling emergency orders as it would a flooding event.

"When you have a flood, you don't have everyone downstream in an emergency," Evers said. "You continue to make those emergency declarations as it happens."

The question before the state's highest court was whether a governor has the authority to issue 60-day orders consecutively for the same event.

Swing justice Brian Hagedorn, who ran as a conservative but has in the past sided with liberal members, joined the court's three staunch conservatives in ending the governor's order.

Writing the majority opinion, Hagedorn said the 60-day language in state statute made it clear Evers needed the legislature's approval to issue any orders beyond the first 60 days.

"The plain language of the statute explains that the governor
may, for 60 days, act with expanded powers to address a
particular emergency," Hagedorn wrote. "Beyond 60 days, however, the legislature reserves for itself the power to determine the policies that
govern the state's response to an ongoing problem."

The Deputy Secretary at the Wisconsin Department of Health Services, Julie Willens Van Dijk, wrote Wednesday evening Wisconsinites should keep following public health guidance of wearing masks in public and keeping their physical distance.

"From a public health perspective, this decision is dangerous and disappointing," Van Dijk said. "But it does not need to change our own decisions about protecting our health and the health and safety of our families and friends, our neighbors and colleagues, and all our fellow residents of Wisconsin."

Hagedorn wrote the court could not consider the public health merits of mask orders. Instead, he wrote they were only to answer the legal question regarding the governor's emergency order powers.

"The question in this case is not whether the Governor acted wisely; it is whether he acted lawfully," Hagedorn wrote. "We conclude he did not."

The court's three liberal justices focused on the word "occurrences" in their dissenting opinion. Justice Ann Walsh Bradley wrote the court should've viewed different milestones -- cases spiking in the fall, the emergence of new variant strains -- as individual developments that merited new 60-day orders.

"We are in the midst of a worldwide pandemic that so far has claimed the lives of over a half million people in this country," Walsh Bradley wrote. "And with the stakes so high, the majority not only arrives at erroneous conclusions, but it also obscures the consequence of its decision."

Legislative reaction

Following the opinion's release, Assembly Speaker Robin Vos (R-Rochester) wrote the court's findings were exactly what he and other GOP lawmakers expected.

“The Wisconsin Supreme Court confirmed what we already knew. Governor Evers exceeded his authority by issuing multiple emergency orders without consulting the legislature," Vos said in a statement. “People and businesses are free to make decisions based on what’s best for them and don’t need state government telling them how to live their lives.”

Democratic lawmakers lamented the court's ruling. Assembly Minority Leader Gordon Hintz (D-Oshkosh) said the decision would make it more difficult for future governors to respond in a pandemic.

“I am deeply disappointed in today’s decision by conservatives on the Wisconsin Supreme Court. They got it 100% backwards today," Hintz said in a statement. "The majority’s decision pretends that a pandemic is unchanging and ignores the devastating human impact of COVID-19."

Progressives have also pointed to the fact Wisconsin could lose as much as $50 million per month in emergency federal food stamp relief.

Republicans countered they addressed that in a bill that would've allowed Evers to issue new emergency orders but only for the purpose of federal funding. That bill would've ended the mask order and Evers vetoed it.

Republicans, including Vos, had said Evers should have worked with the legislature on a limited mask order that would only apply in high-traffic, high-risk settings like hospitals and nursing homes.

Democrats have responded by pointing out such a compromise would have to go through the Joint Committee for the Review of Administrative Rules, whose co-chair, Sen. Steve Nass (R-Whitewater), has consistently said he would not support any type of mask order.

Nass hardly sounded celebratory in a release Wednesday.

"Despite today’s victory for civil liberties, I have no doubt that Evers and his minions are not done yet," Nass said in a statement. "They will now focus their energies on organizing further infringements on civil liberties through excessive actions by liberal-leaning local governments and public health officials.”

Rick Esenberg, president of the conservative Wisconsin Institute for Law and Liberty, said lawmakers' resistance to mask orders should not affect the governor's ability to act on their own.

"We don't change the rules because we don't like what politicians are doing," Esenberg said. "We change the politicians at the next election."

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A. J. Bayatpour

Capitol Bureau Chief

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