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Lawsuits possible against statewide mask mandate, but GOP leader indicates it won't come from Legislature

Lawsuits possible against statewide mask mandate, but GOP leader indicates it won't come from Legislature

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Unlike what happened with the Gov. Tony Evers-backed Safer at Home order, which Wisconsin Republican legislators successfully threw out via a lawsuit that landed with the Wisconsin Supreme Court, Assembly Speaker Robin Vos, R-Rochester, indicated Thursday that the Legislature is not planning on challenging the governor over his new indoor mask mandate.

In a statement, Vos said he opposes the statewide order and its “one-size-fits-all approach,” he did not say that a lawsuit should again be expected from the Republican-controlled Legislature.

Thursday’s mask requirement was handed down by Evers’ himself, not through the Wisconsin Department of Health Services that crafted Safer at Home, and thus the new order rests on a separate authority. The Legislature has the ability to immediately rescind the order through a joint resolution passed by the Senate and Assembly, so it’s unclear whether the state’s courts will be asked to intervene.

Robin Vos in a mask headshot


Vos’ statement, in full, reads:

“I understand the necessity of doing all that we can to control the spread of COVID-19. We all know it’s serious. People have lost loved ones, businesses are struggling to survive and this ‘new normal’ for families is stressful and exhausting.

“Local governments have been responding appropriately and increasing precautionary measures as needed. But Wisconsin shouldn’t have a one-size-fits-all mandate. It doesn’t build public support when there are questions surrounding the metrics and the constitutionality of this mandate.

“It’s disappointing that yet again Governor Evers has chosen to not communicate or work with the legislature. There are certainly constitutional questions here; I would expect legal challenges from citizen groups.”

The City of Racine’s already-in-place Safer Racine ordinance is facing a legal challenge. Local business-owner David Yandel filed the suit, claiming that the city’s rules were unnecessarily hurting his business. A local judge initially overturned the order, which the City Council tried to supersede by codifying the order in an ordinance, which the judge again overturned. But a state appeals court has allowed the order to remain in effect while the case works itself out through appeal.

In a statement, Rick Esenberg — president of the conservative Wisconsin Institute for Law & Liberty that has taken part in numerous state lawsuits, including a high-profile one involving a purge of the state’s voter rolls — said that “the presence of a pandemic does not negate the rule of law. Governor Evers, quite simply, lacks the legal authority to ... require every citizen to wear a mask.”

The Washburn County Sheriff’s Office, a county with a population of less than 16,000 near the northwest corner of Wisconsin, has announced it will not be enforcing the order.

“We encourage everyone to make your own medical choices and what you believe is the best for you and your family. If you choose to wear a mask, we defend that right. If not, we defend that right as well,” Sheriff Dennis Stuart said via Facebook.

Support, dissent, courts

Other Republicans have weighed in, showing opposition to the statewide mask mandate.

Van Wanggaard


“You can’t legislate common sense,” stated Sen. Van Wanggaard, R-Racine. “For that reason, I continue to strongly oppose the one-size-fits all approach of Governor Evers’ response to coronavirus in this state, including the statewide mask mandate. It’s transparent and blatantly political that his order doesn’t take effect until his handpicked Supreme Court justice take office.”

Jill Karofsky, a Democrat supported by Evers, defeated incumbent conservative Justice Daniel Kelly by a vote of 856,470 to 692,976 in April. Karofsky and will take Kelly’s place on the Wisconsin Supreme Court the same day that the mask order goes into effect. Conservatives will still have a 4-3 majority on the state’s highest court even after that flip.

State Sen. Steve Nass, R-Whitewater, has called on Vos and Senate Majority Leader Scott Fitzgerald to reconvene the Legislature in order to fight back against Evers’ order, which Nass called “illegal and unnecessary.”

The Legislature has been out of session for most of the pandemic, having not met in over 100 days. No session days are currently scheduled for the rest of 2020.

State Rep. Cody Horlacher, R-Mukwonago, said that Evers has become a “dictator” after he issued the mask order.

Greta Neubauer in a mask.jpg

State Rep. Greta Neubauer, D-Racine, and Lt. Gov. Mandela Barnes both support the order, as does Sen. Bob Wirch, D-Somers.

In a tweet issued minutes after Evers’ order was announced, Barnes posted a photo of himself in a Milwaukee Bucks face covering. The tweet was captioned: “Mask up, Wisconsin”

“Our community-by-community piecemeal approach, in place since May, has not been effective in containing this virus,” Neubauer said in a statement. “Public health is a team sport: My mask protects you, your mask protects me, and when we work together, we can make a positive impact against this pandemic.”

Robert Wirch


“I’m not a doctor,” Wirch stated, “but health care experts, including from the federal CDC, say masks help slow transmission of COVID-19. I wear a mask when I go out. If something as simple as wearing a mask will help us get this virus under control, so that our businesses can operate as normal, our kids can go back to school, and we can again visit with friends and family, I’m all for it. Let’s give it a shot for these 60 days, and then take a look at the results.”

Mitchell Schmidt of Lee Newspapers contributed to this story.

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