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Opponents explore pair of options for challenging statewide mask order

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MADISON (WKOW) -- Opponents of Governor Tony Evers' statewide mask order, which went into effect Saturday, are exploring two different options for challenging or outright ending the new mandate.

"I was not surprised the governor issued a mask mandate, we had heard it was coming," said Rick Esenberg, President of the Wisconsin Institute for Law and Liberty, a conservative legal group. "I was surprised that he's attempting to do it through the issuance of a second public health emergency."

Esenberg said the Wisconsin constitution allows governors to issue public health emergency orders that last a maximum of 60 days. He believes Evers should not be able to issue a second emergency order when it stems from the same circumstances that prompted him to issue the first one in March.

"Given the fact that it's time-limited, it is simply not an option for a governor to declare a new public health emergency arising from the same set of facts, in this case, the spread of COVID-19, and thereby evade the legal limit of 60 days," Esenberg said.

Private groups filing lawsuits over the order is one option -- and one that would hinge on the Wisconsin Supreme Court ruling in their favor. Esenberg noted the other option is for the state legislature to end the governor's emergency order outright.

While the Republican-majority legislature has not passed a single bill in more than 100 days, Senate Majority Leader Scott Fitzgerald said in a statement Friday members of his caucus "stand ready to convene the body to end the governor's order, which includes the mask mandate."

The governor's legal team has maintained that without any kind of criminal punishment tied to the mask order, opponents have no legal basis to challenge it.

"We want to make sure we're doing the best thing possible," said Ryan Nilsestuen, Chief Legal Counsel for Office of the Governor. "The right thing based on the law, based on the facts and we hope the justices agree with us regardless of what their perceived inclinations may be."

Evers has said his decision to have the order take effect on August 1 was not connected to new Supreme Court Justice Jill Karofsky being sworn in that day. Her election narrows the court's conservative majority to 4-3. Liberal activists have expressed optimism that SCOWIS would uphold the mask order because conservative justice Brian Hagedorn sided with liberal judges in the spring, finding Evers had the authority to issue his "safer at home" order.

Esenberg declined to comment on whether he believed any private groups, including WILL, would soon file lawsuits challenging Evers' latest emergency order.

A. J. Bayatpour

Reporter, WKOW 27

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