Plaintiffs want court to order immediate end to mask requirement

By: - September 28, 2020 5:16 pm
A surgical mask and an N95 mask hang on display for sale at a pharmacy. Photo by Sean Gallup/Getty Images.

A surgical mask and an N95 mask hang on display for sale at a pharmacy. (Sean Gallup | Getty Images)

As the number of positive tests for COVID-19 has skyrocketed in Wisconsin, the conservative law firm that wants to stop Gov. Tony Evers from declaring a health emergency or requiring masks to curb the spread of the virus now wants the court to immediately block all of those orders, including new ones the governor issued just last week.

The Wisconsin Institute for Law and Liberty (WILL) filed a motion on Monday seeking a temporary injunction finding the health emergencies that Evers declared in executive orders that took effect Aug. 1 and Sept. 22 are “invalid and void.” WILL also wants the court to overturn the mask mandate orders that accompanied each of those emergency declarations.

A hearing on the temporary injunction motion is set for Monday, Oct. 5, at 3 p.m. in Polk County Circuit Court, where WILL, on behalf of three local plaintiffs, is suing to overturn the Aug. 1 emergency and mask mandate.

The hearing is scheduled to be conducted on a Zoom call. In an announcement on its website, Polk County states that access to its buildings remains limited “in response to the Coronavirus (COVID-19) pandemic.”

By the time of the hearing, however, the Aug. 1 health emergency that was the subject of WILL’s original lawsuit will have already passed its 60-day expiration.

The lawsuit cited a state law that limits a state of emergency to 60 days unless the Legislature extends it. It asserted that because COVID-19 had not been eliminated after Evers’ earlier health emergency order that ended in May, the governor has no right to declare any new health emergencies related to the pandemic.

Monday’s temporary injunction motion reiterates that framing for both the Aug. 1 and Sept. 22 emergencies, characterizing them as “extending the state of emergency” from the spring “beyond the 60-day limit provided by law.”

With each of the two subsequent health emergencies, however, the governor’s office specifically cited new developments — surges in COVID-19 infections across the state after periods in which it had declined — as unique circumstances and grounds for new declarations.

In reaction both to the Aug. 1 emergency and the Sept. 22 emergency, GOP lawmakers have accused Evers of abusing his authority. Senate Majority Leader Scott Fitzgerald (R-Juneau) threatened after both emergency declarations to call the state Senate back to overturn them, as well as the mask orders.  Other legislators have endorsed such action.

To date, Republican leaders have refused to call the Legislature into session since mid-April to work on additional pandemic relief. They have also refused to meet to address a series of police reform and racial justice proposals put forward by the Legislative Black Caucus and Evers, despite the governor calling them into a special session on that topic. In the meantime, Wisconsin has drawn national attention for spiking COVID-19 rates and for the police shooting of Jacob Blake.

On Saturday, the Atlantic magazine published an article on its website pointing to signs that, as it was headlined, “Wisconsin Is on the Brink of a Major Outbreak.” Atlantic science writer Robinson Meyer wrote: “If the mask mandate is overturned in the state legislature, as Fitzgerald has repeatedly threatened, then Wisconsin’s odds of a deadly surge will worsen.”


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Erik Gunn
Erik Gunn

Deputy Editor Erik Gunn reports and writes on work and the economy, health policy and related subjects, for the Wisconsin Examiner. He spent 24 years as a freelance writer for Milwaukee Magazine, Isthmus, The Progressive, BNA Inc., and other publications, winning awards for investigative reporting, feature writing, beat coverage, business writing, and commentary. An East Coast native, he previously covered labor for The Milwaukee Journal after reporting for newspapers in upstate New York and northern Illinois. He's a graduate of Beloit College (English Comp.) and the Columbia School of Journalism. Off hours he is the Examiner's resident Springsteen and Jackson Browne fanboy and model railroad nerd.