PART EIGHT: Masking Wisconsin’s COVID Storm: Wisconsin’s Approach to COVID-19
by Jacques C. Condon
Part Eight, with this and other posts raising issues worth considering in addressing Wisconsin’s response to COVID-19, also known as the coronavirus pandemic.
In the prior blog posts, the topic of COVID-19 was discussed, including the legislature’s lawsuit that resulted in the voiding of Wisconsin’s “safer-at-home” orders. Since then — mid-May — the Governor had been, quite properly, consistent in his position that he was looking to the local level to adopt COVID-19 policies: the directives would not come from those sitting on high.
A few hours ago, Governor Evers issued a statewide “emergency order” requiring that Wisconsin’s 5.8 million residents wear facemasks. The Emergency Order can be found here:
Once again, the pen is mightier than the sword.
This pen included some qualifications, as the mask wearing requirement only applies to:
“open to the public”
“where individuals congregate”
Such spaces can be indoors or outdoors, although the order doesn’t apply to a private residence AND would only apply if someone outside the living unit was present.
There are still other exceptions. Apparently, a person can eat, drink, sleep or even sing in these indoor/outdoor public spaces without a mask, as long as the mask is immediately put back in place — and a social distance of six feet is maintained. The order also doesn’t apply to those incarcerated or those who, for health reasons, cannot wear a mask (although how those people are to identify themselves is unknown).
MASK UP — SORT OF
So what does this mean?
Let’s take a step back to March. It was then, along with issuing safer-at-home mandates, a separate set of FAQs accompanied the directive (and was continually updated for things such as … golf). Perhaps this is coming.
Plus, the prior orders, rather than helpful, only seemed to encourage pitting people against one another as to whether the orders applied to some business, any businesses, some people, all people, or even certain types of recreation.
Inconsistency was a problem.
And the basics of inconsistency meant that the safer-at-home mandate, when issued, didn’t apply to much. Even Dr. Fouci, at a recent Senate hearing, confirmed that the prior shutdowns only shut down about 50% of the society; with some exceptions, it basically came down to a conclusion that if a person or business wanted to be “essential” they would be “essential” under the safer-at-home construct.
And the inconsistency/wholesale exceptions that existed then exist now in ordering the state to mask up.
Indeed, by limiting itself to places where people congregate, the order shouldn’t apply to walking down the street, use of lakes or rivers, or even a jog through a park (where people don’t’ congregate). It doesn’t apply to use of private property. It doesn’t apply to private facilities.
Indeed, while there is no exception for working out, say, at a gym, those facilities would likely be considered a non-public or private clubs, as would any equestrian facility.
Once again, lack of application doesn’t mean certain places cannot enact their own rules — owners (and people) have to do what they feel is correct, proper, and adjust as they continually reassess — with the rule of common sense as their guide.
Statewide orders that dictate to the lowest common denominator (as discussed in prior posts) don’t replace common sense.
THE LAW BEHIND THE MASK
Another interesting nuance, of course, is the legal “authority” for the order — did the Governor have the authority to do what he did?
Note that the “safer-at-home” orders identified a state statute as giving direct authority to act. In particular (although in a crude summary), when it came to shut downs, the authority was by statute, granted to the Department of Health Services, to act in times of a pandemic.
Then again, the reason those orders were eventually thrown out by Wisconsin Supreme Court (again, in a crude summary), was that the authority, per the Wisconsin Supreme Court, only lasted for a finite time — if it existed at all — which had since expired.
In an interesting twist, the Wisconsin Supreme Court threw out the safer-at-home mandate on a 4-3 split decision, with one of the justices in the majority voted out of office shortly after, to be replaced on August 1 by a Madison-based and perceived as a liberal-leaning justice. Then again, another justice that was deemed conservative sided with the minority. So even with the newest justice, would the same 4-3 be in place?
As an even more interesting twist, supposedly the newest justice will be sworn in this weekend, after the Governor’s order takes effect, and while running a 100 mile race — stopping at mile 35 for a swear-in ceremony. So, if she is not wearing a mask during the entire race (which gives more paparazzi interest, to be sure), we’ll supposedly see where she stands on application of the order to the public.
Those twists aside, as to the statutory authority for the Governor’s mask-order, one statute was mentioned in the order but only generally. Meaning, the order cited authority under Wis. Stat. 323.12 which describes the Governor and the Governor’s duties and powers. We’re somewhat left to guess as to what within this statute is being used as the authority to act, because the Governor’s order states, generally, that he based the order on input from state and local health officials, medical professionals and business leaders — without specifically providing the detail that he reviewed or from whom.
At the same time, the Order seems to describe an authoritative basis to act by mentioning the Constitution — not by named Article or Amendment, but instead by citing a recent U.S. Supreme Court decision that addressed a California church petition (which had nothing to do with masks) — and a subsection of 323.12 that gives the Governor the power to issue orders “during a state of emergency … as he or she deems necessary for the security of persons or property [during a state of emergency]”.
In summary, the Governor would appear to have the authority to issue an order (presumably to include a mask order) if there exists a state of emergency.
This then raises a question as to who declares a state of emergency. That guidance comes from Wis. Stat. 323.10.
Guess who has the authority to declare a state of emergency? Correct: the Governor. The Governor’s public health emergency order can be found here:
Per that statute, the Governor may issue an executive order declaring a state of emergency “if he or she determines that … a public health emergency exists”. The state of emergency cannot exceed 60 days unless extended by joint resolution of the legislature. Moreover, the executive order may be revoked at the discretion of either the governor by executive order or the legislature by joint resolution.
In a nutshell: the Governor gave himself the authority to act upon an order that he himself enacted.
Or, in other words, we’re not far removed from an episode of the Office, with the Governor doing his best Michael Scott impersonation in declaring that something must be because he declares it so.
WILL THE MASK STAY “ON”
The Governor’s order is to take effect August 1, and is in place until September 28 (note the 60 days, per statute).
And for those asking the question why now as opposed to a few weeks ago when Wisconsin hit record numbers for COVID-19 positives or when hospitalization rates were much higher, ask yourself this: Was it because of schools, and many school districts throughout the state announcing plans to reopen while larger, more-Democrat-based districts have declared they will not reopen (until at least mid-October, when this order supposedly expires)? Was it because of the Supreme Court turnover? What changed?
The timing has conspiracy-theorist fodder, to be sure, which unfortunately undercuts any well-intentioned purpose, or not.
I anticipate future posts related to this issue, but, until then, there are certain things to consider — and, indeed, the major problem with the Governor’s first set of orders (i.e. safer-at-home) was the unwillingness or inability to effectively address the issue with the legislature, first. Maybe the legislature was not receptive. Maybe the legislature would have rejected the idea. But to say that one-branch deems there to be an emergency without the other branch joining the position seems, in my view, to undercut any claim of an actual emergency.
Furthermore, the order itself suffers from the same conclusory tone that the first set did.
For instance, the mask-order includes a preamble that states face coverings “are a proven, effective way to slow the spread of COVID-19 without having a significant impact on people’s day-to-day lives;” and “modeling by the University of Washington’s Institute for Health Metrics and Evaluation estimates that a face covering requirement in Wisconsin could save more than 500 lives by October 1 if 95 percent of Wisconsinites wear a face covering in public;”
Wait, what? We’re back to modeling — a subject that I had thought was debunked months ago — and face coverings that, despite the rhetoric, have been shown to be largely ineffective in preventing people from getting COVID-19.
That is, there are sources out there that would debunk everything the Governor has concluded are reasons for the order (including masks); two sides exist to every story, making a one-person order even more suspect when it sticks to conclusions on opinions, not actual fact, and without debate.
Alas, that discussion is for another day.
For now, the next act is for the legislature — what say you?
Jacques C. Condon, Marquette 1999, is owner of Condon Law Firm, LLC, in Thiensville, handling civil litigation, business law, and problem-solving cases ranging on everything from sports and entertainment to local-level government action.