Republican asks Colorado Supreme Court to overturn mask mandate, other orders

A pair of Colorado conservatives is asking the state Supreme Court to rule that Gov. Jared Polis and state and local health departments have overstepped their authority in requiring masks to be worn in public and issuing other orders designed to curb the spread of the coronavirus.

Colorado House Minority Leader Patrick Neville, a Castle Rock Republican, and activist Michelle Malkin filed their lawsuit late Wednesday.

Neville and Malkin assert in it that the Colorado Disaster Emergency Act — which gives the governor expanded powers in an emergency — is unconstitutional and violates the requirement that laws be passed by the state legislature.

In addition to Polis, the executive directors of the Colorado Department of Public Health, El Paso County Public Health and Denver Department of Public Health and Environment are named defendants in the case.

They also cite more than three dozen other executive orders by Polis, the Colorado Department of Public Health and Environment, and the El Paso and Denver public health departments as unconstitutional, saying they “do not comply with the requirements of the United States Constitution and the Colorado Constitution, the direct consequences of which are unjust injury to the fundamental civil rights, liberty interests, and property rights of each Petitioner.”

The lawsuit alleges that the orders violate a separation of powers.

‘We are a representative republic in the state of Colorado,” Neville said Wednesday. “We are not a monarchy. We do not have a King Polis, but that’s the decisions he’s actually taking. He’s made these decisions by one person.”

What’s even worse, Neville said in his announcement, is that unelected health officials are also making these decisions, leaving his constituents without a voice.

The four orders the lawsuit focuses on are the governor’s statewide mask order issued July 16, CDPHE’s public health order issued July 30, El Paso County’s public health order issued April 27, and Denver’s public health order mandating face coverings issued May 14.

In a statement Wednesday afternoon after the lawsuit was first announced, Polis said: “We are free to be on the side of a deadly virus that has taken the lives of too many friends, parents, and loved ones, or on the side of Coloradans. I’m on the side of Coloradans.”

Neville and Malkin’s complaint cites the recent Colorado Supreme Court case that overturned Polis’ executive order easing signature-gathering requirements for ballot initiatives amid the pandemic. The justices ruled that the act doesn’t give the governor the authority to suspend constitutional requirements.

“The essence of Petitioners’ Complaint is that the chief executive by executive order is purportedly making new laws and implementing new public policies which wholly usurp the power of the legislative department to make the laws, a power which has been delegated by the People through their Colorado Constitution exclusively to the legislative department,” the lawsuit stated.

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