In a case stemming from several children not being able to play indoor sports because of Dane County’s emergency health orders, the Wisconsin Supreme Court is weighing whether to modify an elected body’s ability to hand over authority to an executive agency.
A conservative law firm representing Dane County plaintiffs and defendant Dane County have until Feb. 1 to tell the Supreme Court whether they want it to reconsider and modify current precedents on the “nondelegation doctrine,” or the idea that elected legislative bodies cannot pass the buck on decision-making to non-elected agencies and bureaucrats in most cases.
The doctrine became a focus of conservative groups around the country after the pandemic began, as a means to center power in Republican legislatures. Republicans in Wisconsin, spurred by business interests leery of government regulations, have for years tried to rein in the state’s executive branch agencies by revising the state’s rule-making process.
In this case, the alleged breach of the doctrine is a Dane County ordinance that made enforceable any order that the Dane County public health officer deemed necessary to control the pandemic.
Plaintiffs represented by the conservative Wisconsin Institute for Law & Liberty alleged in a lawsuit that Public Health Madison and Dane County director Janel Heinrich gained rulemaking power “without any (specified) duration or oversight by the county board, and she has used that authority since May (2020) to rule all aspects of life in Dane County.”
Because of the public health orders limiting indoor gatherings, one plaintiff’s children could not play indoor soccer and the other’s could not play hockey in Dane County, “causing them significant time and expense to drive outside Dane County to compete,” the lawsuit states.
If the Supreme Court agrees with the plaintiffs, city and county elected officials would have to vote on public health policy changes rather than delegate that power to health officials. On a statewide level, more power would rest with the Republican Legislature if the Supreme Court decides executive agencies have too much rulemaking authority.
“It is our position that the legislature ought not delegate major or significant policy questions to the executive branch or administrative agencies,” WILL president and general counsel Rick Esenberg said in a statement. “This violates the separation of powers which mandates that the legislature makes the law and the executive administers it.”
On a local level, Esenberg said, local administrative officers “should not be empowered to decide what the law on COVID restrictions should be.”
The Supreme Court rejected a similar case brought straight to the court in December 2020 but took this one in December 2021 after the plaintiffs filed the case in Dane County Circuit Court in January 2021, lost the case several months later and appealed it straight to the Supreme Court.
When the Supreme Court rejected the first lawsuit challenging health officials’ rulemaking authority, Justice Brian Hagedorn, who concurred in the 4-3 denial, wrote that the lawsuit raised “important statutory and constitutional questions” but said the case should begin in circuit court.
In 2020, the Supreme Court turned down Democratic Gov. Tony Evers’ stay-at-home order, after which local authorities began creating COVID-19 restrictions.
But those contested local orders are legal, Public Health Madison and Dane County said in a statement.
“We are confident that the Wisconsin Supreme Court will uphold the legality of our public health orders,” the agency said.
The lawsuit was brought by Jeffrey Becker, whose children play for a youth soccer team, and Andrea Klein, whose children play in the Stoughton Youth Hockey Association. A Leap Above Dance, a dance studio in Oregon, joined the case after Dane County sought action against the studio for allegedly violating the indoor gathering ban in late 2020.
“This case is not about what restrictions are appropriate during the ongoing COVID pandemic, which is admittedly serious,” the lawsuit states. “It is about who decides and how.”
The parties may reply to each other’s briefs by Feb. 15, the order said, and the case could be decided by this summer.
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