Lawsuit seeks repeal of Wisconsin governor's mask mandate

Wisconsin's statewide mask mandate should be immediately ended because Gov. Tony Evers didn't have the legal authority to order it, three western Wisconsin residents represented by a conservative law firm argue in a lawsuit filed Tuesday.

It's the first legal challenge to the mask order Evers issued to help slow the spread of the coronavirus after cases began to spike again in mid-June. Evers issued the order on July 30, it took effect Aug. 1, and is set to run until Sept. 28. The order requires everyone age 5 and older to wear a mask while indoors, except at home. Violators could be fined $200.

Governor Tony Evers

Two Polk County residents and one in St. Croix County filed the Wisconsin lawsuit. They are represented by the conservative law firm the Wisconsin Institute for Law and Liberty.

The lawsuit contends that the legal challenge is about Evers' authority, not whether the state should act to slow the spread of COVID-19 or whether there can be a mask mandate. If Evers wanted to enact a mask mandate, he could have done so with the Legislature's approval, not by issuing an executive order, said Rick Esenberg, president of the law firm bringing the challenge.

Evers' spokeswoman Britt Cudaback accused Republicans and their allies of trying to prevent the governor from keeping people healthy and safe.

“We know requiring masks and face coverings will help us save lives, and Gov. Evers will continue listening to science and public health experts in making the best decisions for the people of our state,” she said in a statement.

Evers declared a public health emergency in March related to the coronavirus. That expired after 60 days on May 11 after the Republican-controlled Legislature did not extend it. In July, Evers declared a second state of emergency and issued the mask mandate in conjunction with that order.

The lawsuit argues that the mask order should be struck down because Evers has no authority under state law or the Wisconsin Constitution to issue a second health emergency to address the same crisis without legislative approval. If the court determines that Evers did have legal power to issue the order, the lawsuit argues that the underlying law giving him that power should be found unconstitutional.

Republicans who control the Legislature have fought Evers over his executive powers during the pandemic. Republican legislative leaders sued and successfully ended a “safer at home” order Evers issued this spring. And Senate Majority Leader Scott Fitzgerald called on the Legislature to revoke the mask mandate, but Assembly Speaker Robin Vos has not taken action.

Before Evers issued the statewide order, many cities and counties across Wisconsin had instituted mask mandates, including Milwaukee and Dane counties, Green Bay, Racine, Superior and Whitewater. Evers’ order doesn’t prevent local governments from enacting even stricter ordinances.

Health officials worldwide agree that wearing masks is an effective way to slow the transmission of COVID-19, along with washing hands, keeping a distance from other people and remaining at home as much as possible.

Wisconsin has had nearly 71,000 confirmed cases of COVID-19 and 1,081 deaths from the disease since the pandemic started. That death count is the 28th highest in the country overall and the 37th highest per capita. Over the past two weeks, the rolling daily average of confirmed new cases has decreased by nearly 19%. The state reported 168 new cases per 100,000 people over the past two weeks, and Wisconsin ranks 26th in the country for new cases per capita.

The lawsuit was filed in Polk County Circuit Court but could make its way to the Wisconsin Supreme Court. That court ruled against the Evers administration in May on the “safer at home” order, determining that the state health secretary overstepped her authority by closing most non-essential businesses.

The court, which was then controlled 5-2 by conservatives, did not address the governor’s power to issue public health emergencies.

The mask mandate took effect the same day that liberal-backed Supreme Court Justice Jill Karofsky joined the court, reducing the conservative majority to 4-3.

Wisconsin is one of 34 states with a statewide mask order. Several other orders, including those in neighboring Minnesota and Michigan, also face legal challenges.

Britt Cudaback, Deputy Communications Director for Gov. Tony Evers, issued this statement: 

"Republicans and their allies have tried at every turn to prevent the governor from keeping Wisconsinites healthy and safe. From safer at home to the April election and now masks, they’ve filed more lawsuits than they have passed bills during this pandemic. We know requiring masks and face coverings will help us save lives, and Gov. Evers will continue listening to science and public health experts in making the best decisions for the people of our state.

"For background, it’s been more than 130 days since Republicans in the legislature last passed a bill. Every single Republican member should be asked to answer on the record whether they support this lawsuit, which could strike down the governor’s mask order and ultimately put lives at stake. Don’t buy WILL or Republican attempts to manufacture nuance where there isn’t any by saying this lawsuit isn’t about masks—Republicans either support keeping people healthy and safe based on the advice and guidance of public health experts and science or they don’t."

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