As COVID-19 cases continue to shatter records in Wisconsin, a conservative activist has filed another lawsuit that aims to overturn Gov. Tony Evers’ statewide mask mandate.
The challenge comes as a top Republican said state lawmakers have no plans to repeal the governor’s order themselves.
The latest lawsuit was filed directly with the Wisconsin Supreme Court by Jeré Fabick, a policy adviser and board member for the conservative Heartland Institute. Fabick filed a lawsuit earlier this year challenging the Evers administration’s “Safer at Home” order.
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Fabick’s latest lawsuit argues that Evers exceeded his authority when he issued multiple public health emergencies this year to deal with the COVID-19 pandemic.
“There is no question that the pandemic has had a significant impact on the State of Wisconsin, or that COVID-19 has been an ongoing problem in Wisconsin since at least February 2020,” Fabick’s lawsuit reads. “But the existence of a crisis does not give the government unlimited authority to act in violation of the law.”
Fabick’s lawsuit is at least the third filed against recent public health orders issued by Evers and Andrea Palm, the governor’s secretary of the Wisconsin Department of Health Services.
Evers issued the mask mandate using a state law that gives governors the power to order 60-day public health emergencies in Wisconsin. It’s different than the law his administration used earlier this year to issue its “Safer at Home” order, which was struck down in May by the state Supreme Court.
In addition to Fabick’s challenge, the conservative Wisconsin Institute for Law and Liberty (WILL) filed a lawsuit in Polk County Circuit Court seeking to block the governor’s order. But Judge Michael Waterman upheld the governor’s order, ruling that there was nothing in state law that prevented a governor from issuing multiple public health orders for the same pandemic.
WILL has promised to appeal Waterman’s ruling. Fabick’s lawsuit, if it’s accepted by the state Supreme Court as an “original action,” would skip the usual appeal process and let justices hear the case directly.
The fight over the mask mandate is separate from the statewide restrictions on public gatherings issued by the Evers administration last week. The Tavern League of Wisconsin sued over those restrictions and a Sawyer County judge blocked them this week.
The bombardment of lawsuits comes as Wisconsin continues to break COVID-19 records.
On Friday, the DHS reported a new single-day record for COVID-19 cases (3,861), a new record for the seven-day average of cases (3,052) and a new record for the number of people hospitalized for COVID-19 (1,101).
Evers, who has been sharply critical of the GOP lawsuits to limit his power, took his case to the airwaves Friday as his campaign announced a new six-figure ad buy attacking Republicans for their response to the pandemic.
“Republicans are playing politics with our pandemic response, but Gov. Tony Evers is taking action,” announced the ad’s narrator.
Because a recall effort has been launched against the governor, he’s allowed to raise unlimited funds for his campaign.
State Senate Majority Leader Scott Fitzgerald, R-Juneau, blasted the ad, saying it “shamelessly exploits the COVID crisis.”
“As Governor of the State of Wisconsin, attempting to lay the responsibility for pandemic response at the feet of the legislature simply demonstrates Tony Evers’ poor leadership of an administration more focused on politics than on coming together for meaningful reform,” Fitzgerald said in a statement.
At the same time, Assembly Majority Leader Jim Steineke, R-Kaukauna, said Friday that lawmakers have no plans to come back to Madison to override the governor’s emergency orders.
“No, I mean we’re focused on just making sure that the rule of law is upheld and making sure that at the end of the day that the governor is following the law,” Steineke told PBS Wisconsin.
When Waterman upheld the governor’s mask order last week, part of the reason he gave was that the Legislature had not voted to repeal the order, even though it had the power.
“The Legislature can end the state of emergency at anytime, but so far, it has declined to do so,” Waterman said at the time.
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