Conservative Firm Files Suit to Overturn Mask Mandate, Restrict Governor’s Powers

Suit claims Evers did not have the authority to issue a second public health emergency. 

The conservative firm Wisconsin Institute for Law & Liberty (WILL) on Tuesday filed a lawsuit on behalf of three western Wisconsin residents challenging Gov. Tony Evers’ implementation of a statewide face mask order in the state, the first legal challenge of that action by the governor. 

During an online news conference, WILL President Rick Esenberg said the lawsuit isn’t about opposing the mask mandate but instead is aimed at limiting the governor’s authority to enact a statewide law without the consent of the state Legislature. 

However, if the court sides with WILL, the mask mandate would no longer be in effect.

“This lawsuit is about the authority of the governor,” Esenberg said. “It’s about how we make laws in this state. Our state clearly contemplates that there is a 60-day limit [to emergency orders].” 

State law dictates the governor’s authority to extend emergency orders is limited to a 60-day period, Esenberg said. Evers’ mandatory face mask order–designed to slow the spread of the coronavirus- is illegal, Esenberg said, because it was implemented as if it addressed a new public health emergency. 

However, he said, the coronavirus pandemic is the same public health emergency as existed in March.  Evers already issued a previous public health emergency to address the pandemic at that time when the state Department of Health Services issued the safer-at-home order.  

“The idea that this is a new emergency I think is made up,” Esenberg said. 

A spokesperson for Evers said the order was necessary to protect public health. 

“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,” said Britt Cudaback, a spokesperson for Evers. “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.”

It has been more than 130 days since Republicans in the legislature last passed a bill.

On May 13, the state Supreme Court overturned the extension of safer-at-home, ruling 4-3 that state officials lacked legal backing to continue the order past 60 days. Republican supported the decision. 

The number of coronavirus cases in Wisconsin has increased significantly since then as people resumed activities and began gathering again. As of Monday, 70,854 positive cases of the virus had been detected in Wisconsin, and 1,081 people have died. 

Evers initially said he didn’t plan to issue a statewide mask mandate, but he did so on July 30, when he declared a second virus-related public health emergency as coronavirus cases continued to climb across Wisconsin. The mask order is scheduled to expire Sept. 28. 

WILL did not file for an immediate injunction to halt mask mandate enforcement, but is instead concerned about the governor overstepping his authority in the future, Esenberg said. 

Rather than issue the mandatory mask order, Evers could have enacted that action through a rule-making process that would have included legislative approval, an opportunity for public input, and other review, Esenberg said. The governor’s issuing the order unilaterally isn’t allowed by state law, he said. 

“What we are really concerned about is this is just not the way we make law in Wisconsin,” Esenberg said. 

The lawsuit was filed in Polk County Court. WILL is not asking the state Supreme Court to take the case as it frequently has done with other litigation, but it could wind up there, Esenberg said. 

Following Evers’ issuance of the mask order, some Republican lawmakers, including Senate Majority Leader Scott Fitzgerald, R-Juneau, said the Legislature would meet to overturn that action. However, Republicans subsequently said they lacked enough votes among their Assembly members to overturn the measure.  

Esenberg said he believes the Legislature should have voted on the order, and in the absence of such action WILL decided to file the lawsuit.