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Wisconsin Spotlight | Nov. 23, 2020

MADISON — Dane County health officials exceeded their power in issuing a public health order banning all indoor gatherings in private homes and all indoor sports, according to a petition filed Monday with the Wisconsin Supreme Court.

Wisconsin Institute for Law & Liberty’s (WILL) emergency petition — on behalf of two Dane County residents and a local gymnastics studio owner —  asks the court to issue an immediate temporary injunction stopping an order that effectively cancels Thanksgiving with extended family and friends in Dane County in the face of rising COVID-19 numbers.

Ultimately, the Milwaukee-based public interest law firm asks the court to overturn Public Health Madison & Dane County’s order, which WILL claims illegally bypasses local elected officials — and the will of the people.

“Dane County and the City of Madison have unlawfully delegated near limitless legislative power to their local health officer to do whatever she deems ‘reasonable and necessary’ to combat the COVID-19 pandemic, without any duration or oversight from the county board or city council, and she has seized that power since May to rule the city and county by decree,” the petition states. 

The state Supreme Court earlier issued a restraining order against Public Health Officer Janel Heinrich for ordering all schools in the county — public and private — to shut down in-person learning. That lawsuit has yet to be settled.

“Just as egregiously, on November 17, one week before Thanksgiving, Dane County’s health officer again invoked that unlawful delegation to unilaterally ban all indoor gatherings, including in private homes, among any individuals not within the same immediate household (like extended family, significant others, etc.) and has threatened Madison and Dane County residents with a $1,000 fine for hosting any such gatherings,” the petition states.

“She has also banned all indoor sports activities, regardless of the nature the activities size of the facility, or the precautions taken, effectively closing sports-related businesses like gymnastics gyms, hockey rinks, and indoor soccer fields, even though these have been operating safely, and other businesses in much smaller buildings can continue to operate.”

Heinrich took her action without a vote from the Dane County Board or the Madison Common Council. According to state law, such prohibitions can not be enforced unless they are enacted in an ordinance by the local governing body, WILL argues.

Dane County’s board has adopted an ordinance purporting to preemptively make enforceable any order that its local health officer adopts. The city of Madison, likewise, has interpreted a generic “health nuisance” ordinance to do the same thing.

But the petition argues the ordinances “blatantly violate the non-delegation doctrine, as this Court has already recognized in Wisconsin Legislature v. Palm.”

The Supreme Court in a 4-3 ruling in May struck down the Evers administration’s extended lockdown because the governor’s Department of Health Services Secretary-designee Andrea Palm failed to work with the Legislature in setting rules for state emergency health orders.

Public Health Madison & Dane’s health order remains in effect until Dec. 16.

“Our job is to protect the health and safety of Madison and Dane County residents, and we will continue that mission on the foundation of science and data,” health agency spokeswoman Sarah Mattes said in a statement.

But the health officials, critics argue, have been selective in their “protections.” While the order limits indoor Thanksgiving gatherings to immediate family members, it allows Black Friday shopping to go on at big box retailers — up to 50 percent capacity.

“The latest order from the health department in Dane County illustrates why a single, unelected and unaccountable health official should not be allowed to rule unilaterally by decree,” said Rick Esenberg, WILL’s president and general counsel, in a press release. “COVID-19 should be taken seriously. But these decisions must be made by the local governing body. Banning private family gatherings just before Thanksgiving, while allowing Black Friday shopping, makes little sense.”

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