WILL Judge Shops To Kill Mask Mandate

Thankfully, the 43,598 residents of Polk County in northwest Wisconsin have not been hit hard by the COVID-19 pandemic.

As of last Thursday, there had been 73,138 positive COVID-19 tests across Wisconsin, and only 167 of them in Polk County. Of the 1,111 pandemic deaths statewide, two were in Polk County. The virus incident rate per 100,000 residents was 385 in Polk County — less than one-third of the statewide average of 1,265.

Yet, when the conservative Wisconsin Institute for Law & Liberty (WILL) sued to overturn two public health emergency declarations issued by Democratic Gov. Tony Evers, where did it file that lawsuit?

Polk County.

It’s the latest example of judge shopping, which is allowed because Republican legislators and GOP Gov. Scott Walker elected in 2010 rewrote state law to allow state government to be sued in any county. Republicans felt that judges in Dane County — seat of state government — were too predictably liberal.

Judge shopping occurs when an individual or organization sues in a county where plaintiffs think judges may be more likely to agree with the claims in their lawsuit. Both of Polk County’s Circuit Court judges – Jeff Anderson and Daniel Tolan — were appointed by Walker.

Polk County is also part of the 3rd District Court of Appeals, which would hear any appeal of a decision by Anderson or Tolan. Two of the three 3rd District Court of Appeals judges — Chief Judge Lisa Stark and Judge Thomas Hruz — were also appointed by Walker. Stark won a full term in 2013; Hruz won a full term in 2016. The third judge in that district, Mark Seidel, was elected in 2015.

No one knows how Polk County and 3rd District Court of Appeals judges will rule on the WILL lawsuit. But WILL thinks its odds of winning are higher in Polk County than they would be in Dane or Milwaukee counties.

After all, WILL sued the state Elections Commission — and won — in suburban Ozaukee County. In that suit, WILL argued that the Commission must erase from the statewide master list of voters more than 209,000 voters who had not responded to queries asking whether they still lived at old addresses.

An Ozaukee County judge agreed, ordered the names of those voters purged and held Elections Commission members in contempt. The appeal of those orders are pending before the state Supreme Court, where conservatives have a 4-3 majority.

But back to WILL’s lawsuit in Polk County, where — the suit admits — COVID-19 “has not greatly impacted” that county.

The suit alleges that Evers illegally declared two back-to-back public health emergencies in March and July. The July order included the statewide “Mask Up Wisconsin” edict to fight the spread of COVID-19.

Yet, insisted Rick Esenberg, WILL’s president and founder, “This lawsuit is not about whether masks are good or bad, or whether Wisconsin ought to do more, or less, to address COVID-19.”

“It isn’t even about whether the state should have a mask mandate,” Esenberg added. “This lawsuit is about our system of government and the rule of law. Gov. Evers cannot seize these time-limited emergency powers more than once without legislative approval.”

Still, the second page of the lawsuit makes it clear that repealing the mask order is a primary goal of the lawsuit.

WILL also alleges that other freedoms — if the governor’s authority to issue emergency executive orders is not reigned in by Wisconsin judges — are also at risk. If Evers could issue whatever emergency declarations he wants, permanent “travel bans, lockdowns and the closing of businesses, churches and other gatherings” are possible, WILL alleged.

Evers “unlawfully” extended the state of emergency for a second 60 days for the same reason – the COVID-19 pandemic – “without approval by the Legislature,” according to the lawsuit.

Let’s, as Evers often says, connect some dots. After Evers issued the “mask up” order, Senate Majority Leader Scott Fitzgerald wanted both houses of the Republican-controlled Legislature to convene and overturn that order. But Assembly Speaker Robin Vos refused to bring Assembly Republicans back to the Capitol to cast that vote. Why? Maybe because the last Marquette University poll found that 69 percent of respondents statewide supported wearing face masks to fight the pandemic.

Hopefully, Vos added, “citizens groups” would fight the statewide mask edict. WILL just did.

Steven Walters is a senior producer for the nonprofit public affairs channel WisconsinEye. Contact him at stevenscotwalters@gmail.com