Lawsuit Challenges Evers Mask Mandate

Governor Tony Evers’ mask mandate is headed to court, albeit indirectly.

The conservative-leaning Wisconsin Institute for Law and Liberty (WILL) has filed a lawsuit in Polk County Circuit Court on behalf of three residents challenging an emergency health declaration made by Evers on July 30th.

WILL, through president and general counsel Rick Esenberg, said its suit is not about COVID-19 or masks. “This lawsuit is not about whether masks are good or bad, or whether Wisconsin ought to do more, or less, to address COVID-19. It isn’t even about whether the state should have a mask mandate,” said Esenberg. “This lawsuit is about our system of government and the rule of law. Governor Evers cannot seize these time-limited emergency powers more than once without legislative approval.”

Under state law, the governor is allowed to declare an emergency health order for a period of no more than 60 days. Evers originally did so in March, with the order expiring in May. In order to issue the mask mandate, Evers issued a second emergency health order on July 30th and then used it to institute the mask mandate. Clauses in the new emergency order cited “a drastic rise in COVID-19 cases throughout the entire state, with 61 of 72 counties (84 percent) representing 96 percent of the state’s population experiencing high COVID-19 activity” and ” a dramatic increase from where Wisconsin was in June.”

A May 13th ruling from the Wisconsin Supreme Court did not impact Evers’ emergency powers. It was issued on May 13th, the day after Evers’ order expired. The court’s ruling took issue with the rulemaking powers of Secretary of the Department of Health Services.

Should WILL’s suit make it to the Supreme Court, it will find a different court than the one that ruled 4-3 to overturn the “Safer at Home” extension. Evers waited until July 30th to issue his new order, two days before Jill Karofsky took her seat on the Wisconsin Supreme Court, replacing Scott Walker-appointee Daniel Kelly who voted in the majority in May.

In a press release, WILL argued its case is simple. “To interpret the law otherwise, would allow one-person rule by the Governor for what could be a virtually unlimited amount of time whenever the vague statutory definition of a ‘public health emergency’ or ‘disaster’ can be said to be present. The result would be the total breakdown of our constitutional order.”

WILL operates from the 330 Kilbourn office complex in downtown Milwaukee, was formerly housed in the Bloodgood House owned by The Lynde and Harry Bradley Foundation, and has been a recipient of considerable funding from the conservative foundation.

Evers’ office did not respond to a request for comment by the time of publication.

A copy of WILL’s complaint can be found on Urban Milwaukee. Evers’ order, executive order #82, and mask mandate, emergency order #1, can be found on Urban Milwaukee.

The plaintiffs in WILL’s suit are Derek Lindoo, Brandon Widiker and John Kraft.