Lawsuit challenges Gov. Evers' mask mandate

MADISON, Wis. (CBS 58) – A lawsuit filed against the Evers administration could end the statewide mask mandate if successful.

The lawsuit is the latest legal battle over the state’s response to the ongoing pandemic which has highlighted the deep, partisan divide in Wisconsin.

The lawsuit was filed by the conservative law firm Wisconsin Institute for Law & Liberty (WILL) on behalf of three state residents.

“This case isn’t really about the mask mandate as such, but how you go about doing things like a mask mandate,” WILL President and General Counsel Rick Esenberg told CBS 58 in an interview.

It challenges the governor’s authority on emergency declarations. WILL argues the governor cannot issue multiple emergency declarations on the same issue – in this case the Covid-19 pandemic.

“If we allow governors to do that then they will be able to govern unilaterally as long as they can claim that there is some kind of an emergency. That’s fundamentally inconsistent with the notion of democracy,” Esenberg said.

Governor Tony Evers first declared a public health emergency in March when the pandemic first reached the U.S. That declaration expired in May. In July, Evers issued another emergency declaration and along with it, the statewide mask mandate.

His chief legal counsel said at the time the public health situation had changed, allowing the governor to issue another emergency declaration.

“This public health emergency is to deal with the situation we have right now and we are in a very different situation than we were before,” Ryan Nilsestuen said in a July 30 media briefing alongside Gov. Evers and Department of Health Services leaders.

Britt Cudaback, Gov. Evers’ Deputy Communications Director, sent CBS 58 this statement:

“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. 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.”

The lawsuit was filed in Polk County, but it is likely to reach the state Supreme Court. The court struck down Evers’ Safer at Home order in May in a 4-3 decision where conservative Justice Brian Hagedorn joined the two liberal justices on the bench at the time.

Since then, Jill Karofsky, who was backed by liberals in the spring election, has joined the court, shrinking the conservative majority from 5-2 prior to her arrival, down to 4-3.

The current emergency declaration with the mask mandate runs until Sept. 28.