On July 30, Gov. Evers declared a public health emergency effective for the next 60 days (or until it is revoked by Gov. Evers or by action of the Legislature). Pursuant to the declaration, the governor issued a statewide requirement for all persons to wear masks. The statewide mask requirement goes into effect at 12:01 a.m. on Saturday, August 1, 2020, and expires on September 28, 2020, or by a subsequent superseding emergency order. We anticipate a legal challenge will be filed.
Under the statewide mask requirement: “[e]very individual, age five and older, in Wisconsin shall wear a face covering if both of the following apply:
- The individual is indoors or in an enclosed space, other than at a private residence; and;
- Another person or persons who are not members of individual’s household or living unit are present in the same room or enclosed space.”
“Enclosed space” includes – but is not limited to – outdoor bars, outdoor restaurants, taxis, public transit, ride-share vehicles, and outdoor park structures.
There are exceptions, detailed in the statewide requirement, for activities such as while eating or drinking or “[w]hen engaging in work where wearing a face covering would create a risk to the individual, as determined by government safety guidelines.”
The statewide requirement specifically supersedes any local order that is less restrictive. In addition, the requirement specifically states local governments may issue orders more restrictive than the statewide requirement.
The statewide requirement is order is enforceable by civil forfeiture of not more than $200.
Legislative Response
The statewide mask mandate initially prompted a strong legislative response. Senate Republicans immediately spoke out against the mandate and stated they are poised to reconvene and rescind the executive order and accompanying face coverings requirement.
However, Assembly Republicans continue to appear reluctant to do so. Assembly Speaker Vos did publicly say that if Gov. Evers were to close schools statewide, the Assembly would reconvene and rescind the new public health emergency order. Gov. Evers has publicly said he has no plans to close schools statewide, thereby allowing local school districts to determine how best to proceed.
A key point is for the Senate to reconvene, it may only do so if the Assembly agrees the Legislature may reconvene. Neither house may reconvene without the acquiescence of the other house. At this point, it appears the Legislature is not likely to reconvene to rescind the executive order.
It is expected that litigation is will be filed against the governor’s orders, though such litigation will likely be filed by citizens groups and not by the Legislature.