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New Lawsuit Seeking to Overturn Mask Order Is Totally Misguided

Posted on in Wisconsin Government Regulations Lawyers

Milwaukee civil law attorneyMilwaukee WI criminal defense lawyerBy Attorney Ray Dall’Osto and Attorney Erin Strohbehn

Wisconsin once again is facing a misguided attempt to stop practical and essential public health measures and overturn orders issued by Governor Evers and his administration to help Wisconsin get through the unprecedented COVID-19 pandemic. Unfortunately, our state supreme court (unlike courts in almost every other state) did just that by a 4-3 majority earlier this Spring. Now, a conservative law group has filed a suit seeking to overturn the Governor’s mask order.

An article in Harvard Law Today from May 2020, written by Peter Brann, the former Maine state solicitor, and James Tierney, a former Maine attorney general, says it all. 

Even though the majority of people agree with of common-sense measures to limit the spread of infections, a small but vocal minority has made its disagreement known by engaging in protests and taking legal action in state and federal courts. Recently, a federal judge in Maine upheld emergency orders put in place by Maine Governor Mills after they faced a legal challenge by an Orrington, ME pastor. Several other state and federal courts have also rejected lawsuits challenging mask orders. In the Orrington case, U.S. District Court Judge Nancy Torresen stated, “Although a government cannot use a health crisis as a pretext for trampling constitutional rights, the Supreme Court has long recognized that a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.”

The courts have recognized that emergency powers are necessary to ensure that governors can protect their states' citizens, and these cases involve much more than choosing between life and liberty. Decades ago, United States Supreme Court Justice Robert Jackson, who also served as chief prosecutor in the trials of Nazi war criminals in Nuremberg, wrote that “The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.”

Justice Jackson was correct. Liberty does not allow a restaurant to serve diners after it fails a health inspection. It does not allow a church to hold services after failing building code inspections. Governor Mills has balanced people's lives and liberty when facing a dangerous and unprecedented pandemic, and she should be receiving congratulations for this rather than being condemned.

Masks work. Magical thinking does not. Be responsible to yourself, your family, and those around you and help stop the spread of COVID-19. That’s the common-sense, patriotic thing to do.

using a mask can prevent COVID-19 infections

Contact a Milwaukee Civil Law Attorney

If you have questions about legal issues related to COVID-19 or Wisconsin's mask order, contact our Milwaukee, WI civil litigation lawyers at 414-271-1440.

Sources:

https://madison.com/wsj/news/local/govt-and-politics/conservative-group-files-lawsuit-against-tony-evers-second-covid-19-emergency-order-mask-mandate/article_b8353552-18e7-5a74-a9d8-bb5c84788219.html#tracking-source=home-top-story-1

https://today.law.harvard.edu/roundup/uncharted-territory-legal-experts-weigh-in-on-the-covid-19-outbreak/

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