Judge: Governor can extend emergency

The Brillion News

HUDSON – St. Croix County Circuit Court Judge R. Michael Waterman rejected a request for an injunction to block Governor Tony Evers from using a series of health emergency declarations to extend restrictions – including the face mask mandate – in light of the COVID-19 pandemic.

The order was issued Monday, October 12 in a suit brought by three Polk County residents challenging the governor’s authority. The three plaintiffs were represented by the conservative activist law firm of Wisconsin Institution for Law and Liberty (WILL).

“The plaintiffs believe that the governor exceeded his statutory authority by declaring public health emergencies on Three separate occasions, each related to the same health crisis – COVID-19,” Judge Waterman wrote in his decision.


He said a temporary injunction, which the plaintiffs sought, would have the effect of a permanent injunction.


The judge said that nothing in state law limits the governor from declaring a series of emergencies related to the same situation, even though the law says that each emergency order in a public health emergency is limited to 60 days of efficacy.


“That language gives the governor broad discretion at act whenever conditions in the state constitute a public health emergency,” Waterman wrote.

The suit contended that the 60-day limit becomes meaningless if the governor declares a series of successive state of emergency for the same crisis.

Waterman disagreed.


“A finite executive order prevents the governor from perpetuating emergency powers after the emergency has dissipated,” Waterman wrote. “When an executive order ends after 60 days, it forces the governor, before issuing another order, to re-examine the situation and publicly identify existing, present-day facts and circumstances that constitute a public health emergency. The 60-day limit provides an important check against run-away executive power, but it does not prevent the governor from issuing a new executive order when the emergency conditions continue to exist.”


He noted that state law gives the legislature the power to terminate an executive order, something the Republican controlled legislature has not taken an initiative to do.

“As the statewide representative body of the citizens of Wisconsin, the legislature’s inaction is relevant and it weighs against judicial intervention ...”


In short, Waterman said the state legislature’s failure to block the new executive orders is reason enough for the court to do nothing.


He also noted that three citizens from Polk County were asking him to issue an order that would affect all citizens in Wisconsin.


WILL said it will take Waterman’s decision to a higher court, most likely the state Court of Appeals.


Waterman was appointed to the bench in 2015 by Governor Scott Walker. In 2016, he was elected to a six-year term.

~ Ed Byrne/BN from a WILL statement and Judge Waterman’s decision.


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