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Patrick Neville, Michelle Malkin file lawsuit challenging Colorado’s mask-wearing mandate. It likely faces a steep hill.

The mask mandate was issued by Gov. Jared Polis on July 17 after saying earlier that such a requirement was unenforceable.

Colorado Gov. Jared Polis holds up a U.S. Census mask as he speaks to reporters at the governor's mansion in downtown Denver on Thursday, June 11, 2020. (Jesse Paul, The Colorado Sun)
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UPDATE: The Colorado Supreme Court declined to hear the case.

The top Republican in the Colorado House and a well-known conservative commentator from Colorado Springs have filed a lawsuit challenging Gov. Jared Polis’ mask-wearing mandate more than a month after it went into effect.

But it likely faces a steep hill to being quickly heard.

The filing — spearheaded by House Minority Leader Patrick Neville, R-Castle Rock, and El Paso County resident Michelle Malkin — alleges Polis overstepped his emergency authority in issuing the requirement.

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The challenge was filed Wednesday evening with the Colorado Supreme Court because it deals with the separation of powers between the executive and legislative branches of government. The lawsuit is technically a petition for the court to take up the case.

The court has discretion over whether to take the case, and legal experts say it’s rare — if unheard of — for the panel to take up a case that hasn’t been heard in a lower court first.

“It’s certainly very unusual,” said Christopher Jackson, an appellate attorney with the law firm WilmerHale who specializes in Colorado Supreme Court and Colorado Court of Appeals cases. 

He said, in fact, that he’s never heard of a lawsuit being directly filed with the Colorado Supreme Court.

“I can’t say for certain that it’s never happened,” Jackson said.

If a lawsuit were filed in a lower court, it would have to initiate proceedings.

Neville and Malkin appear to nod to this fact in their 36-page petition, vowing in the filing to bring the case in another venue if the Colorado Supreme Court won’t hear it. They say their filing is “imminent.”

“Petitioners are ready, willing, and able to litigate the issues raised in this
petition in either the state District Court in Denver, or the United States District Court for the District of Colorado, or both,” the filing says.

The Colorado Supreme Court and Colorado Court of Appeals. (Jeremy Martinez, Special to The Colorado Sun)

The mask mandate was issued by Polis on July 17 to slow the spread of the coronavirus after he initially said such a requirement was unenforceable. The Democrat has since said the mandate helped quash a surge in COVID-19 cases and hospitalizations in Colorado.

Polis blasted Malkin and Neville for bringing the lawsuit.

“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,” Polis said in a written statement in response to the lawsuit. “I’m on the side of Coloradans.”

MORE: Read the lawsuit.

Neville and Malkin are represented in the case by attorney Randy Corporon, the incoming Republican national committeeman for Colorado.

“We are in month five now of these executive orders with no legislative input,” said Neville, who is a race to maintain his leadership position at the Capitol. “I think the governor has gone well beyond the power that has been given to him. He is actually legislating and writing laws. That’s our job as the legislature. It’s time to put an end to that.”

House Republican leader Patrick Neville, a Castle Rock Republican, in the Colorado House chambers. (Kathryn Scott, Special to The Colorado Sun)

Polis has has issued dozens of executive orders since the pandemic hit Colorado. The mask mandate is at least the third to be challenged in court.

Only one of his directives, around allowing signature gathering by mail and email, has been rejected.

The lawsuit specifically alleges that the mask mandate violates the Colorado constitution and asks for a legal review of the Colorado Disaster
Emergency Act under which Polis issued the order and others.

The legal filing alleges that the court, in the case around signature gathering, ruled that Polis cannot suspend a constitutional requirement. Nevilel and Malkin argue the mask mandate constitutes a new law and only the legislature is allowed to make laws.

Also listed as defendants are Colorado Department of Public Health and Environment Executive Director Jill Hunsaker Ryan, El Paso County Public Health Executive Director Susan Wheelan and Denver Department of Public Health and Environment Executive Director Bob McDonald.

The Colorado Supreme Court could make a decision on whether to hear the case within a week, though the exact timeline is at its discretion.

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