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Conservative group files lawsuit against Tony Evers' second COVID-19 emergency order, mask mandate
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Conservative group files lawsuit against Tony Evers' second COVID-19 emergency order, mask mandate


A conservative legal group filed a lawsuit Tuesday against Democratic Gov. Tony Evers’ current COVID-19 public health emergency, which was used to implement the state’s mask mandate.

Tony Evers


The lawsuit from the Wisconsin Institute for Law and Liberty (WILL) was filed on behalf of three Wisconsin residents — two residents of Polk County and one resident of St. Croix County — in Polk County Circuit Court and sets up the latest legal battle over the governor’s attempts to minimize the spread of the coronavirus.

The lawsuit alleges that state law forbids a governor from unilaterally extending a public health emergency beyond 60 days or by declaring multiple emergencies in response to the same crisis. The group did not file for an immediate injunction to stop enforcement of the governor’s mask mandate.

“Today’s lawsuit is not about mask mandates, it’s about the authority of the governor,” WILL president and general counsel Rick Esenberg said on a call with reporters Tuesday. “It’s about how we make laws in this state.”

“The point of our lawsuit is to seek a declaration that the governor cannot declare a second public health emergency arising from the same underlying set of facts — that is, the COVID pandemic,” Esenberg said.

Evers spokeswoman Britt Cudaback said that Tuesday’s lawsuit represents the latest challenge by Republicans against the governor’s efforts to follow science and public health in order to protect Wisconsinites during the ongoing pandemic.

“Republicans and their allies have tried at every turn to prevent the governor from keeping Wisconsinites healthy and safe,” Cudaback said in an email. “From safer at home to the April election and now masks, they’ve filed more lawsuits than they have passed bills during this pandemic.”

Speaking with reporters last month, Ryan Nilsestuen, Evers’ chief legal counsel, said the new public health emergency is in response to an entirely different situation than what the state faced in March, due in large part to rising positive cases of COVID-19 statewide.

“We’re in a very different situation than we were before,” Nilsestuen said.

Esenberg said that claim is “completely implausible.”

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“The COVID pandemic has basically stayed with us,” he said. “It’s the same problem today that we had in March.”

As of Monday, COVID-19 has killed 1,081 Wisconsinites and infected more than 70,000 people across the state, according to the Department of Health Services.

The WILL lawsuit states that an emergency order can only be extended by the Legislature with a joint resolution, not by the governor. The lawsuit states that Evers’ extension of the order “arrogates to the Governor the power to unilaterally make law for an indefinite period of time.”

Evers issued his first COVID-19 public health emergency in March. Soon after, the state issued a “safer at home” order prohibiting some businesses from operating and limiting activities at others.

With the order set to expire in April, Evers and state DHS Secretary Andrea Palm issued a subsequent order extending the restrictions until May 26. The Republican Legislature in April brought a lawsuit challenging the stay-at-home order, which the Wisconsin Supreme Court struck down in May.

Following weeks of public statements by the governor that a mask mandate was unlikely in Wisconsin, Evers last month declared a new public health emergency and a separate order requiring masks. Both orders are set to expire Sept. 28.

Some Republicans immediately pushed back against the order, with Senate Majority Leader Scott Fitzgerald, R-Juneau, saying he had the votes to begin the process of striking down the order, but neither state chamber has formally convened on the matter.

A Marquette Law School Poll conducted days after Evers issued a statewide mask mandate and released earlier this month found that a wide majority of respondents, 69%, support requiring face coverings in all public places.

A majority of support for mask mandates was present in every region of the state. However, only 43% of Republicans supported a mask mandate, compared with 93% of Democratic respondents.

At the same time, concern about the virus among respondents reached its highest level since the question was first asked about in March. That month, 30% said they were “very worried” about COVID-19. Concern steadily dropped to 19% in June, but climbed back up to 27% in August.

COVID-19 in photos: How Wisconsin is managing the pandemic

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