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Wisconsin Spotlight | Jan. 21, 2021

MADISON — Dane County’s controversial health department faces yet another lawsuit challenging its expanded use of power in the pandemic era.

The Wisconsin Institute for Law & Liberty (WILL) is representing two Dane County residents who allege Public Health Madison & Dane County has illegally taken authority to “rule all aspects of life” in the county. The health agency has used this sweeping authority since May, when the Dane County Board of Supervisors transferred its authority to health officers without any oversight, the lawsuit alleges.

“This case is not about what restrictions are appropriate during the ongoing COVID pandemic, which is admittedly serious,” the complaint states. “It is about who decides and how.”

The lawsuit, filed on Wednesday in Dane County Circuit Court, asserts the board’s transfer of power violates the non-delegation doctrine — the principle that legislative bodies may not turn over their policymaking role to unelected and unaccountable bureaucrats without sufficient constraints.

“Plaintiffs ask this Court to declare this ordinance illegal and to enjoin enforcement of any orders issued in reliance on it,” the complaint states.

If the lawsuit seems familiar, that’s because it is. It’s substantially similar to an original action WILL filed with the Wisconsin Supreme Court in November. The court voted (4-3) to not take the case, saying a lower court must hear it first. But the four conservative-leaning justices indicated the claims had substantial merit.

In that lawsuit, the Milwaukee-based civil liberties law firm challenged Public Health Madison & Dane County’s health order “as an overreach of the legal authority granted to local health officers and an unlawful delegation of authority form local elected bodies.” The restrictions were never voted on by the Dane County Board.

WILL notes the health department’s restrictions on sports in particular illustrate why “a single, unelected official should not be permitted to rule by decree indefinitely.” Several school districts in Dane County have voted to restart athletics, but Dane County’s sweeping restrictions force young athletes to travel outside the county to compete.

“Dane County’s health department has enacted some of the strongest restrictions in Wisconsin without any express sanction from local elected officials,” Luke Berg, WILL’s deputy counsel, said in a press release.  “This lawsuit asks the court to rein in the ability of local, unelected health officers to unilaterally issue sweeping restrictions.”

Last month, the Wisconsin Supreme Court heard oral arguments in another lawsuit against the health department, a case in which WILL is involved, too. At issue is whether Public Health Madison & Dane has the authority to close public and private schools in response to a communicable disease spread.

Private religious schools and parents fought back against the health order — issued days before the fall semester began. They filed a lawsuit claiming the order violated state law and stepped on their First Amendment rights of freedom of religion. The Supreme Court in a 4-3 ruling in September agreed to take the case and issued a temporary injunction against Heinrich and her edict.

Court observers expect the court to issue a final ruling yet this month.

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