Conservatives sue over mask mandate
Lawsuit seeks to knock down emergency declaration
MADISON - A conservative legal firm is going to court to knock down Gov. Tony Evers’ public health emergency, which would also eliminate the statewide mask mandate.
The Wisconsin Institute for Law & Liberty on behalf of three northwest Wisconsin residents filed a lawsuit Tuesday in Polk County seeking to invalidate Evers’ emergency order issued in late July.
Rick Esenberg, president and general counsel of the firm, said the lawsuit is about the governor’s authority and not about whether face masks are effective in combating coronavirus. But the suit also claims its plaintiffs are harmed by being compelled to wear a face covering.
“This lawsuit is about our system of government and the rule of law,” Esenberg said in a statement. “Governor Evers cannot seize these time-limited emergency powers more than once without legislative approval.”
The lawsuit was brought by Derek Lindoo of Balsam Lake, John Kraft of Roberts and Brandon Widiker of Amery.
Kraft is the chairman of the St. Croix Republican Party.
Britt Cudaback, spokeswoman for Evers, said Tuesday’s lawsuit is another attempt by Republicans 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,” Cudaback said, referring to lawsuits Republican legislative leaders successfully brought against Evers to eliminate his order to stay home and to postpone the April 7 election.
“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.
Evers issued the statewide face mask mandate effective Aug. 1 after cases of coronavirus began to climb again in Wisconsin following a two-month downturn in late spring and early summer. Wisconsin became the 32nd state with a mask mandate at the time of Evers’ order, which runs through September and applies to indoor activities, with exceptions.
State health officials have said it’s too early to conclude whether the mandate has had an effect on transmission.
Since its implementation, the number of new cases has trended downward but still remains higher than the average
daily cases during the first five months of the pandemic.
The lawsuit argues Evers illegally issued a new public health emergency because the emergency is over the same threat as a previous order issued in March, which has since expired.
Esenberg argues Evers cannot declare new public health emergencies over the same pandemic.
“... the COVID-19 pandemic still exists and has existed — unabated and unsuppressed — in Wisconsin since both the declaration and expiration of the state of emergency declared (in March),” the lawsuit says.
“At no time has the number of daily infections dipped significantly below the number that existed at expiration of the original state of emergency — a time at which the Governor was arguing for continued extraordinary restrictions,” it says.
Evers declared a public health emergency in mid-March after the coronavirus began to spread in Wisconsin after first reaching the U.S. in January. That order expires by law after 60 days unless the Legislature votes to extend it, which it did not do.
The governor declared a new emergency in late July primarily to mandate face masks statewide. His order provided for a $200 fine for violations.
The lawsuit argues the three plaintiffs are harmed by being forced to take an action, in this case wearing a mask by an unlawful order, and because Evers is spending taxpayer money to enforce the mandate and to deploy the National Guard to conduct coronavirus testing and to man polling places amid a shortage of workers.
The case will be heard by Polk County Circuit Judge Daniel Tolan. Polk County has two judges, both of whom were appointed by Republican Scott Walker when he was governor.
The current public health emergency ends at the end of September, making it unclear whether the lawsuit will make its way through the court system before it expires.
Esenberg said in a call with reporters that the legal challenge was brought after it became clear Republican lawmakers did not plan to convene to vote down the order.