MADISON, Wis.—A long-simmering dispute is headed to the Wisconsin Supreme Court over the frequent use of local health department mask mandates in an attempt to prevent the spread of COVID-19 in Wisconsin’s capital city and county.
The high court granted a motion from the Wisconsin Institute for Law & Liberty (WILL) and its clients to bypass the Wisconsin Court of Appeals directly to the Wisconsin Supreme Court. The plaintiffs in the lawsuit against Dane County argue that the county health director has no powers to order mask mandates or set rules about public gatherings in an effort to control COVID-19.
“This case presents the court with an opportunity to clarify that local health officers cannot unilaterally issue orders that restrict daily life without approval from a legislative body,” said Luke Berg, deputy counsel for the Milwaukee-based WILL. “The Dane County Board cannot pass the buck and allow an un-elected health officer to issue whatever orders she sees fit.”
Janel Heinrich, director of Public Health Madison & Dane County, has made frequent use of emergency health orders to require face masks in buildings open to the public in the county of nearly 565,000 people.
On Nov. 1, the health agency issued Face Covering Emergency Order No. 4, continuing the requirement to wear face masks in indoor spaces. The order was in effect until Nov. 27.
“At this time, we do not plan to renew the Emergency Order after November 27,” the agency’s website read.
On Nov. 23, the agency revoked the sunset of the mask order, putting in place Emergency Order No. 5, extending mandatory masking until Jan. 3, 2022. On Dec. 20, Emergency Order No. 6 was issued, effective until Feb. 1, 2022.
“Case averages and the number of people hospitalized in Dane County hospitals with COVID have reached the highest levels of 2021 this month,” the new order reads. “Dane County remains in CDC’s highest level of community transmission.”
Lawsuit Challenges Health Orders
The lawsuit against the health agency and its COVID orders was filed in January by plaintiffs Jeffrey Becker, Andrea Klein, and A Leap Above Dance LLC. The suit alleges that Heinrich has no legal authority to issue such orders and that the Dane County Board of Supervisors can’t delegate its authority to an unelected employee.The Dane County Circuit Court sided with the health agency in a summer 2021 ruling. The plaintiffs appealed and filed a request to take the case directly to the Wisconsin Supreme Court. The Supreme Court has yet to schedule oral arguments; it will use the briefs already filed in the appeal to develop a ruling after oral arguments.
In June, the Wisconsin Supreme Court ruled that Heinrich and her department had no authority to order most grades of public and private schools to halt in-person instruction to control COVID-19.
Just days before the start of the fall 2020 semester, Public Health Madison had issued an order to close down in-person instruction in grades 3–12. Three lawsuits—including a coalition of Catholic, Protestant, and other private schools—challenged the order. The high court combined the cases, and on Sept. 10, 2020, issued a temporary injunction against the closure order.
In its June ruling, the Wisconsin Supreme Court struck down the health order, ruling it was an illegal infringement on parents’ rights to freely practice their religion. The court also ruled that local health officers don’t have such power; that only the state of Wisconsin has statutory authority on such matters.
‘Illegal, Unnecessary, and Unconstitutional’
“If local health officers’ authority to take measures ‘reasonable and necessary’ included the extraordinary power to close schools, then the Legislature’s specification of particular powers, such as the power to ‘inspect schools,’ would be superfluous,” Bradley wrote. “The power to take measures ‘reasonable and necessary’ cannot be reasonably read as an open-ended grant of authority.”
At the time, Rick Esenberg, WILL’s general counsel, said the local health order was “illegal, unnecessary, and unconstitutional.”
“Even as the COVID-19 pandemic recedes, the court’s decision provides a critical correction that ought to prevent future abuses of power in an emergency,” he said. Esenberg’s agency represented one of the plaintiff groups in the case.
Public Health Madison & Dane County began issuing emergency orders on May 13, 2020, the same day the state Supreme Court struck down Gov. Tony Evers’s “Safer at Home” program that largely restricted the state’s population to their homes.
The agency cited statutes that refer to the powers of the state Department of Health Services, not to local health officers, the court ruled. It cited changes to state law going back to 1883 that could have empowered local health departments with such authority, but did not.
“If Heinrich’s argument were correct, then the general provision would essentially afford local health officers any powers necessary to limit the spread of communicable diseases. This cannot be,” the court ruled. “What is reasonable and necessary cannot be reasonably read to encompass anything and everything. Nothing in the text of the statute confers upon local health officers the power to close schools. Because we are a court and not the Legislature, it would exceed the constitutional boundaries of our authority to rewrite the law in this manner.”
That court case was the fourth in about a year that put checks on Wisconsin government actions taken during the COVID-19 pandemic. In March 2021, the Wisconsin Supreme Court struck down Evers’s repeated use of emergency declarations to impose statewide restrictions such as mask mandates. Five of Evers’s six emergency declarations were illegal, the court said.
Two weeks after that decision, the Wisconsin high court ruled that Evers overstepped his authority by regulating the size of gatherings at businesses, restaurants, and other venues in an effort to control COVID-19.
Public Health Madison & Dane County issued an emergency order in August requiring anyone over age 2 to wear a face mask when in “any enclosed space open to the public where other people, except for members of the person’s own household or living unit, are present.” The order required that face masks be worn while riding on public transportation. Those orders were renewed monthly through the rest of this year.
An original action filed by WILL at the Wisconsin Supreme Court asked for an injunction and court review of what it called “an unlawful delegation of legislative power to an executive official.”
“Last time, it was schools, this time, it is masks; next time, it could be vaccine passports and permanent masking,“ WILL stated in its petition. ”Respondents’ power is not unlimited, and the residents of Dane County deserve protection from these unchecked mandates.”
Dane County attorneys argued that health officials were within their authority and were using one of the least restrictive measures to control COVID. They cited state law that allows health departments to do what is “reasonable and necessary” to control contagious disease.
In a 4–3 ruling, the Supreme Court declined to hear the challenge to the mask orders. Justice Brian Hagedorn, who voted with the majority against Dane County in the June decision, voted against taking the masking case in August. Now the issue is back before the court.
