A conservative law firm wants the Wisconsin Supreme Court to put a stop to Dane County's latest public health order barring indoor gatherings as Thanksgiving approaches.
The lawsuit, filed Monday, is the most recent effort from the Wisconsin Institute for Law & Liberty to bypass the lower courts while targeting Public Health Madison & Dane County's authority to issue certain COVID-19-related orders.
Under the county's new directive, indoor gatherings of any size involving people outside of one's household are prohibited, while outdoor gatherings are capped at 10 people. The language also nixes all in-person sporting events, conferences, movies and group exercise classes.
WILL contends that rather than being issued by the public health department, such orders should be authorized by elected officials in Madison or Dane County, namely the City Council or Board of Supervisors.
“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," WILL President Rick Esenberg said in a statement. "COVID-19 should be taken seriously. But these decisions must be made by the local governing body."
The order came days before the state surpassed 3,000 deaths stemming from COVID-19, a milestone reached after the Department of Health Services reported 51 deaths over the weekend, bringing the total to 3,005. At the county level, officials on Thursday reported a record level of hospitalizations due to COVID-19, while more than one in 100 people have tested positive for the virus over the last two weeks.
Meanwhile, public health experts have urged Wisconsinites to stay home for the holidays, fearing an increase in COVID-19 transmission as families or friends from different households gather together indoors for prolonged periods of time.
Dane County Executive Joe Parisi in a statement Monday noted medical professionals "have reached the point of literally begging for our cooperation" as he urged residents "to come together, in the spirit of shared sacrifice and support for our doctors, nurses, and all medical providers."
“Dane County will vigorously defend its orders because it is the right thing to do for people who are giving their all right now," he pledged.
The Dane County order, which continues the county mask mandate and 50% capacity limit at businesses and 25% at restaurants, was put in place eight days before Thanksgiving, and it remains in effect until Dec. 16. Violators could see a fine of $1,000, plus costs.
The lawsuit — brought by Fitchburg-based Gymfinity, which conducts gymnastics education, training and classes, and two Dane County parents whose children participate in sports activities — argues the new order exceeds the public health department's authority, infringes on individuals' rights to freedom of association and more.
In addition to challenging the new order, the suit also asks the court to weigh in on the underlying ordinances that allowed Public Health Madison & Dane County and director Janel Heinrich to issue such orders in the first place. The challenge alleges the underlying local language violates the constitutional non-delegation doctrine, by which elected officials are unable to delegate their legislative powers to other entities.
Madison assistant city attorney Marci Paulsen and others have said the local authority to issue orders related to the coronavirus crisis are backed up by state statute. Paulsen in May told the Cap Times in an email she was "confident" the wording "authorizes our public health officer to do what is reasonable and necessary to prevent/suppress the spread of this virus."
Those bringing the lawsuit want the court to temporarily bar enforcement of the local order, allowing private gatherings to continue, before analyzing the broader legal issues raised — including whether, as the suit argues, the underlying local ordinances pre-emptively make "enforceable any ordinance that the Dane County health officer deems 'reasonable and necessary' to combat the COVID-19 pandemic" without oversight or time limit.
The lawsuit isn't the first one from WILL taking aim at a Dane County public health ordinance. A few months ago, the group filed suit against a public health emergency order that allowed only a fraction of elementary school students to attend classes in person in Dane County.
The Wisconsin Supreme Court put the order, which mandated virtual learning for grades 3-12, on hold in September. At the time, WILL's suit was consolidated with two others that contended the department did not have the authority to close schools and that the responsibility falls only to the state Department of Health Services.
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