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

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.

Jesse Paul / Colorado Sun
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 / Colorado Sun

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.

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.

To read the rest of the Colorado Sun article, click here.

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