Lawsuit seeks repeal of governor's mask mandate

By Scott Bauer
Associated Press

MADISON, Wis. (AP) — Wisconsin’s statewide mask mandate issued by Gov. Tony Evers should be immediately ended because the governor did not have the legal authority to order it, three western Wisconsin residents represented by a conservative law firm argue in a lawsuit filed Tuesday.

The lawsuit is the first legal challenge to the mask order Evers issued as a way to slow the spread of the coronavirus after cases began to spike again in mid-June. Evers issued the order on July 30 and it took effect Aug. 1. It 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.

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 take steps 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 initially 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 power under the law 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 average number of daily new cases has decreased by nearly 19%. There were 168 new cases per 100,000 people in Wisconsin over the past two weeks, which 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 in May ruled against the Evers administration on the “safer at home” order, determining that the state health secretary overstepped her authority with the order that closed most non-essential businesses.

The court at that time, 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.