Lawsuit filed in Polk County says Gov. Evers lacked legal authority to issue another emergency order.

The Wisconsin Institute for Law and Liberty (WILL), a conservative law firm, on Monday asked a judge for an immediate injunction to temporarily strike down Gov. Tony Evers’ extended mask order until the judge hears arguments of whether to permanently kill the order or maintain a safeguard designed to save lives as the state experiences a record number of coronavirus infections and hospitalizations.

WILL’s request will go before St. Croix County Circuit Court Judge Michael Waterman, an appointee of former Republican Gov. Scott Walker, on Oct. 5. It is the latest development in a lawsuit WILL filed Aug. 25 in Polk County Circuit Court (the two original judges in Polk County recused themselves, so the case went to Waterman in St. Croix County) on behalf of three western Wisconsin residents soon after Evers issued his first mask requirement utilizing an emergency order.

At the heart of the lawsuit is the question of whether Evers was legally allowed to issue the emergency order without input from the absentee state Legislature. State law gives governors the ability to issue a 60-day emergency order, but it is up to the Legislature to extend the order, let it expire, or end it early. 

Evers declared a coronavirus-related emergency order in March when he issued his stay-home order. He then declared another public health emergency in July, citing a massive coronavirus spike, when he issued his first mask order, and another last week to extend the mask order through Nov. 21, citing unprecedented virus spread after schools reopened. 

“This motion for an immediate injunction is a recognition that the executive branch in Wisconsin is, thus far, completely undeterred by the constraints of state law and must be reined in,” WILL President Rick Esenberg said in a statement.

Because Assembly Speaker Robin Vos (R-Rochester) and Senate Majority Leader Scott Fitzgerald (R-Juneau) have refused to convene their chambers of the Legislature in more than 160 days, Evers has been left with no choice but to issue legally dubious orders as he tries to contain the coronavirus pandemic that has now infected nearly 120,000 and killed 1,283 people in Wisconsin.

WILL said Evers’ third emergency declaration is “a gross abuse of power” because it is “in effect a continuation of the earlier emergencies.”

Fitzgerald threatened to bring the Senate into session to end the first mask order, but he never followed through as Assembly Republicans didn’t have enough votes in their chamber. After the second mask order, Vos and Fitzgerald left the work of ending the order to litigation, saying they expected legal challenges.

The first mask mandate went into effect on July 30 when the seven-day new case average was, according to the Department of Health Services, 887 new cases daily. Case growth would gradually decrease, reaching a low point on Sept. 3 of 674 average daily confirmed cases over seven days. However, once students returned to classrooms, especially in colleges, spread of the virus exploded. The seven-day daily average is now 2,155 cases, according to the Department of Health Services.

Health experts worldwide agree masks are one of the most effective ways to stop the spread of coronavirus.