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Wisconsin Spotlight | Aug. 26, 2020

MADISON — Gov. Tony Evers’ sweeping executive order that opened the door to his controversial mask mandate violates state law, according to a lawsuit in Polk County Circuit Court.  

The complaint, filed Tuesday by the Wisconsin Institute for Law & Liberty on behalf of three Wisconsin residents and taxpayers, argues the governor did not — does not — have the authority to “unilaterally extend” a state of emergency beyond 60 days.

“Governor Evers cannot seize emergency powers more than once to address the same crisis,” WILL said in a statement Tuesday, following a press conference on the lawsuit. “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.”

As the Wisconsin Supreme Court decided in a 4-3 ruling in May, the Evers administration violated state law when it extended its stay-at-home order ostensibly to combat COVID-19 beyond his original 60-day lockdown. After the first order expired, the governor needed the support of the Legislature to continue the restrictive health order. Evers had no interest in working with the Republican majority, so his Department of Health Services Secretary-designee Andrea Palm simply extended it without regard to the law.

The Supreme Court busted the overreaching administration, but Evers, citing an uptick in COVID-19 cases in parts of the state, announced late last month that he would issue Executive Order #82. It requires individuals ages 5 and up to wear a mask, with certain exceptions and exemptions. It includes no state enforcement teeth, but local officials have weighed civil penalties.

In issuing his latest executive order, Evers once more went around the Legislature and “unlawfully extends” the state of emergency for another 60 days.

If the order is unlawful, then so is the governor’s mask mandate, the lawsuit argues.

It’s bigger than the mask, the plaintiffs say.

“Although he has not yet done so, Governor Evers would presumably say that he is entitled to issue any number of additional extraordinary measures pursuant to the emergency declared by Executive Order #82, including travel bans, lockdowns and the closing of businesses, churches and other gatherings,” the complaint states.

Rick Esenberg, president and general counsel of the Milwaukee-based civil liberties law firm, said the lawsuit isn’t 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,” Esenberg said. “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.”

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