Tony Evers issues a statewide mandate to wear masks indoors through the end of September

Milwaukee Journal Sentinel

Gov. Tony Evers is requiring all Wisconsin residents to wear face masks while indoors until the end of September.

The order issued Thursday takes effect Saturday and makes Wisconsin the 32nd state to require face coverings — a tool health experts say can substantially reduce transmission of the coronavirus, which can cause serious illness and death and has no vaccine.

Evers took the step the same day Wisconsin saw more than 1,000 new cases of the virus — continuing an upward trend of infections in recent weeks.

Along with the new face mask requirement, Evers declared a new public health emergency in Wisconsin over rising cases of the virus — a move considered legally dubious by conservatives.

The orders could push Republican lawmakers, who successfully sued the governor in May over his stay-at-home order, to return to the state Capitol to block Evers — another showdown with the Democratic governor the senate's majority leader said he is considering.

But Democratic lawmakers and Wisconsin bankers praised the order, saying it will help reverse a worsening outbreak in the state and provide uniform rules for businesses operating in different counties.

Evers said he decided to issue the orders as a way to get on top of a virus outbreak growing out of control in recent weeks.

"We tried their way. Folks, it’s not working," Evers said Thursday of Republican lawmakers' successful lawsuit to remove state-imposed restrictions on daily life.

The governor is issuing the statewide mandate after first maintaining he lacked the authority do so and then changing course, saying for weeks he was considering the idea but worried Republican lawmakers would take him to the Wisconsin Supreme Court again.

Under Evers' order, face masks will be required for anyone age 5 or older while indoors except at a private residence. The order also applies to schools for the first few weeks of the school year if students return to classrooms.

Violating the order could result in fines of up to $200.

"We’ve said all along that we’re going to let science and public health experts be our guide in responding to this pandemic, and we know that masks and face coverings will save lives," Evers said in statement.

"While I know emotions are high when it comes to wearing face coverings in public, my job as governor is to put people first and to do what's best for the people of our state, so that's what I am going to do."

A number of exceptions were in the order, including for members of the Legislature and the state judiciary.

Exceptions to the mandate

Exceptions also are made for eating and drinking, for speakers at religious services and reporters delivering news reports, and for people who have breathing issues, among other reasons.

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The governor's face mask requirement takes effect the same day as the state Supreme Court's liberal minority expands with the addition of Jill Karofsky, who was elected in April, and comes after former Democratic Gov. Jim Doyle and Democratic lawmakers said Evers should issue the mandate as soon as possible.

In a briefing with reporters, Evers downplayed the timing.

"It doesn't have everything to do with it — the virus is the issue, not Jill Karofsky," he said.

Wisconsin joins 31 states and the District of Columbia in requiring face masks statewide and was the last state with a Democratic governor to do so.

Assembly Speaker Robin Vos, R-Rochester, said there are constitutional questions about Evers' new public health emergency and mask order but signaled he would not be suing the governor over them.

"I understand the necessity of doing all that we can to control the spread of COVID-19. We all know it’s serious," Vos said in a statement. "Local governments have been responding appropriately and increasing precautionary measures as needed. But Wisconsin shouldn’t have a one-size-fits-all mandate."

Vos said a statewide mandate "doesn’t build public support when there are questions surrounding the metrics and the constitutionality of this mandate."

He said legal challenges from "citizen groups" are likely coming.

Senate Republicans were more forceful, with Sen. Chris Kapenga of Delafield saying the caucus would be looking at options with their attorneys.

Senate Majority Leader Scott Fitzgerald of Juneau, who is running for Congress in the 5th District, said he is considering convening a floor session to block the new public health emergency.

"Masks are fine, but we don’t need statewide mandates telling us what to do," Fitzgerald said in a statement. "Many people are wearing masks already. Municipalities have been making the decisions themselves on what best fits their regions."

Fitzgerald's comments came after three members of his caucus asked him to bring them back to the state Capitol to block Evers.

"Governor Evers actions today are nothing more than a political stunt to create a partisan fight with the Legislature. This is not about improving public health," Sen. Steve Nass of Whitewater said in a statement.

Evers dismissed Nass' outrage, saying Republican lawmakers all but abdicated their jobs during the pandemic by passing one bill since it began.

"The Republicans could have come into session at any time. This has been a long pandemic, folks. And you look around at states in the nation. We are one of the few states where the Legislature has not taken an active role — hands-off," Evers said. "So suddenly Steve Nass gets excited about this, wants to bring people in to do away with this order. I think that’s a sad commentary for all of us."

"To come in and have the Republicans essentially say we don’t believe in science —pretty risky business. Pretty risky political business, and real risky health business."

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Evers' authority questioned

Opponents have contended Evers doesn't have the ability to declare a new health emergency after the one he issued in the spring expired.

Rick Esenberg, president and general counsel of the conservative Wisconsin Institute for Law & Liberty, said wearing a mask is "courteous and smart" but a pandemic doesn't change legality.

"Governor Evers, quite simply, lacks the legal authority to declare a second public health emergency and require every citizen to wear a mask," he said.

Emergency declarations issued by governors are good for 60 days. They can be extended or cut short by the Legislature. Lawmakers did not extend Evers' first public health emergency declaration that was issued in March.

University of Wisconsin Law School professor Miriam Seifter, who specializes in executive power and the separation of powers at the state and federal levels, told the Milwaukee Journal Sentinel in June that it's unclear whether Evers could declare a second public emergency over the coronavirus pandemic.

"On one hand, the 60-day limit indicates an intent to avoid perpetual executive aggrandizement. On the other hand, it must be true that factually similar situations can be distinct emergencies — for example, there might be multiple floods of a given river in spring or summer, but the emergency conditions might wane in between," she said.

"All of this suggests a fact-dependent approach to whether the governor could declare a new public health emergency."

A national poll released last week by The Associated Press found three in four Americans supported mask requirements. Among those backing the requirements was a majority of Republicans.

Several communities, including Milwaukee and Dane County, have put mask requirements in place in recent weeks.

Legal experts and Doyle, who served as attorney general before his two terms as governor, disagreed with Evers' initial position that he lacked authority to take the step after the May state Supreme Court ruling that knocked down his stay-at-home order.

Doyle said the ruling did not eliminate all of Evers' powers.

Evers has said the court ruling put his emergency power into question, complicating his decision-making process.

With Saturday's addition of Karofsky, the Supreme Court may decide similar lawsuits differently than before.

Conservative Justice Brian Hagedorn, who previously worked as a chief legal counsel for former Gov. Scott Walker, sided with the court's liberal minority in May, saying Evers' stay-at-home order should remain in place.

Evers on other occasions said he did not expect to take certain actions only to turn around and do them. He said he didn't think a stay-at-home order would be needed this spring but then issued one. He said he wouldn't delay the April election but then tried, unsuccessfully, to do so soon afterward.

Evers’ attorney, Ryan Nilsestuen, said no one should assume how justices will rule and cited examples of justices casting surprising votes.

“While I think it’s a tempting thing to think that certain justices are automatically going to line up in certain ways, we want to make sure that we’re doing the best thing possible, the right thing based on the law, based on the facts, and we hope that the justices agree with us regardless of what their perceived inclinations may be," Nilsestuen said.

Nilsestuen said people who refused to wear masks at the polls in the Aug. 11 primary would still be able to cast ballots, noting they have a right to vote. Election clerks are not responsible for enforcing the mask requirement, he added.

Contact Molly Beck at molly.beck@jrn.com. Follow her on Twitter at @MollyBeck.