Updated Aug. 28, 3:45 p.m.
Colorado's highest court Friday declined to hear a court challenge from a powerful Republican state lawmaker and conservative media figure who sued the governor over local public health orders.
Patrick Neville, the House minority leader, and Michelle Malkin, a conservative activist who lives in El Paso County, sued Gov. Jared Polis and local public health agencies over orders related to the pandemic and put in place since March.
That includes Polis’ executive order last month requiring residents to wear face masks in public. Court spokesman Rob McCallum posted on Twitter that the court declined to take the case, without explanation.
A spokesman for Neville’s office said, “We’re disappointed, but we’re moving on to the district court level.”
In a press release sent out just before the suit was filed, Neville said Polis’ executive orders have been “devastating” to the people of Colorado.
The governor’s office issued a two-sentence reply: “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.”
After the state Supreme Court's decision, Polis' office sent out another statement celebrating the move:
“Mask wearing is a proven way to slow the spread of this deadly virus, will help keep businesses open, save lives, and keep our economy growing. I’m glad the Supreme Court stands with the people of Colorado in our fight against the deadly virus, in which mask-wearing is one of our most effective weapons.”
The lawsuit targets a broad array of measures put in place since March.
They aimed to protect public health by restricting a broad spectrum of daily life, like travel, cleaning nursing homes, bars and restaurants, theaters, fairs, markets, weddings, graduation ceremonies and funerals.
In the release announcing the lawsuit, Neville, who represents Castle Rock, Castle Pines and other parts of south Metro Denver, said “People have been ordered to stay at home; their right to travel has been trampled; their right to worship has been taken away; businesses have been shut down; and countless jobs have been lost. The Governor has overstepped his Constitutional powers.”
The complaint, filed with the Colorado Supreme Court, doesn’t delve into the medical efficacy of wearing masks or social distancing; instead it makes its arguments on constitutional grounds. “The essence” of the suit is that by issuing the executive order requiring masks Polis, “is purportedly making new laws and implementing new public policies which wholly usurp the power of the legislative department to make the Laws.”
The suit contends, according to the state’s Constitution, that power belongs exclusively to the legislative department, of which Neville is a leader.
But experts on the spread of the virus as well as a number of public health leaders have credited masks with helping limit the spread of the novel coronavirus, which has caused 179,000 deaths and nearly 6 million cases in the United States, according to the Centers for Disease Control and Prevention.
As of August 26, Colorado had recorded 55,993 cases of COVID-19 and 1,927 deaths among patients with COVID-19. The state has recorded 590 outbreaks, in places like nursing homes, prisons and meat processing plants, but also schools, restaurants, bars and businesses. Communities of color have been particularly hard hit, both nationally and in Colorado, accounting for a disproportionate share of cases and deaths.
A number of studies have documented the benefits of wearing masks.
Those studies show masks are safer both for the wearer and people with whom that person comes in contact. A study published in the Lancet in June, for example, found that “face mask use could result in a large reduction in risk of infection.”
Still, the debate over masks, unlike in other countries, turned political in the U.S., despite the fact that a growing consensus continues to support masks as a way to limit the spread of COVID-19. An NPR report on a model from the University of Washington’s Institute for Health Metrics and Evaluation found masks could prevent thousands of deaths nationally before October. Top infectious disease expert Dr. Anthony Fauci has advised “universal wearing of masks.”
The suit also names other agencies and officials involved in public health orders regarding masks, including the Colorado Department of Public Health and Environment and its executive director, Jill Hunsaker Ryan, the health departments of El Paso and Denver counties, and the top heads of those two agencies, Susan Wheelan and Robert M. McDonald.
Colorado has generally fared better in terms of measurable COVID-19 data, like cases, deaths and positivity rate than a number of hard-hit states like Florida, Georgia, Texas, Arizona and California.
But Polis’ approach to responding to the pandemic has drawn criticism from some people. That includes from Republicans who criticized far-reaching restrictions, and bars and restaurants who sued, calling the strict government measures “unfair.”
Last month, CPR News reported Neville tweeted that Polis was “on a power trip,” and said he had hired attorneys with “the intent to sue” for an alleged violation of civil liberties.
In the press release about the lawsuit, Neville said the state has checks and balances and 'Governor Polis needs to follow them.'
Neville and Malkin are being represented by Attorney Randy Corporon. According to the complainants, they are challenging the constitutionality of the Colorado Disaster Emergency Act. Under the state Constitution, the legislative branch writes the law, and the executive branch is meant to enforce it, the pair said in their press release. “Governor Polis’ executive orders cross that dividing line,” it said.
Polis announced the statewide mask mandate on July 16. He resisted doing it earlier, but with several local jurisdictions pursuing similar measures and the COVID-19 trends heading in an unsettling direction, he decided it was time.
“I'm hoping this is a wakeup call,” Polis said at the time.
The mask order requires masks for people entering or moving within any public indoor space, or using or waiting to use public (buses, light-rail) or non-personal (taxis, car services, ride-shares) transportation services, among other situations.
It also spells out situations where people don’t have to wear masks, like when seated at a food service establishment, when exercising alone or with others from the individual’s household, or when receiving a personal service where the temporary removal of the face covering is necessary to perform the service. No masks are required, per the order, when actively engaged in a public safety role such as law enforcement, firefighters, or emergency medical personnel, or officiating at a religious service.
State epidemiologist Rachel Herlihy opened the governor's briefing that day with the latest numbers and data the state is tracking. She said a breakdown in social distancing and face coverings, particularly around the July 4th holiday weekend, lead to what officials called an alarming change.
Based on the modeling of those trends at the time, Polis said, “the state would exceed its (hospital) ICU capacity in September. So that's the bad news. The good news is there is time."
The mask mandate appears to have had an impact, according to epidemiologists and health officials. The state’s numbers, including the positivity rate that is seen as a reliable gauge of transmission, have fallen to some of their lowest levels since the virus was first detected in Colorado in March. Polis says mask-wearing has contributed to those gains.
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