The Colorado Supreme Court on Friday refused to hear a lawsuit filed by a top statehouse Republican and a conservative activist challenging Gov. Jared Polis’ statewide mask mandate.

The court made its decision less than two days after the lawsuit was filed by Colorado House Minority Leader Patrick Neville, R-Castle Rock, and Michelle Malkin of Colorado Springs.

Neville and Malkin, represented by attorney and Colorado Republican National Committeeman Randy Corporon, alleged that Polis violated the required separation between the legislative and executive branches when he issued the mask mandate more than a month ago.

The lawsuit was filed directly to the Colorado Supreme Court, which legal experts told The Colorado Sun was an extremely unusual, if not unheard of, move that made the chances of it being heard highly unlikely.

In the lawsuit, Neville and Malkin said they would take the case to a lower court or the federal court system if the Colorado Supreme Court declined to take up the case.

“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 lawsuit said.

Polis said Malkin and Neville, in filing the lawsuit, were showing they are “on the side of a deadly virus that has taken the lives of too many friends, parents, and loved ones.”

Defendants included Polis and the heads of the Colorado Department of Public Health and Environment, El Paso County Public Health and the Denver Department of Public Health and Environment.

The lawsuit contends that public health orders crafted or issued by unelected officials with health agencies are causing “unjust injury to the fundamental civil rights, liberty interests, and property rights” of Coloradans.

Neville was an early and vocal critic of a stay-at-home order issued last spring that has since been lifted, arguing in part it would destroy the economy by frustrating residents rights to work.

Polis, whose administration has been sued over past health guidance on public gatherings in houses of worship, insisted Wednesday that he is “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.”

The lawsuit cited a state Supreme Court decision July 1 that reversed an executive order by Polis easing signature-gathering requirements for ballot initiatives because of the pandemic. The court said Polis cannot suspend a state constitutional requirement – in this case, on signature-gathering – despite the public health emergency.