Wisconsin Supreme Court rejects immediate review of Dane County public health restrictions

By a slim 4-3 majority, the court rejected the conservative Wisconsin Institute for Law and Liberty’s request for the high court to bypass lower courts and take up the case asking for the court to halt Dane County’s recent ban on all private gatherings indoors, including indoor sports activities and even gatherings inside people’s homes.

Dane County has since relaxed restrictions to again allow in-person gatherings of 10 or fewer people.

Yet again, conservative Justice Brian Hagedorn provided the crucial swing vote, siding with the court’s three liberals to dismiss the case. Hagedorn recently sided with liberals in dismissing a number of high-profile election disputes brought by President Donald Trump or his allies, a posture that has alienated him from his conservative base of support.

Hagedorn was elected in 2019, and isn’t up for re-election until 2029.

Writing for the majority, Hagedorn emphasized the Wisconsin Supreme Court isn’t designed to take up cases directly, a job meant for circuit courts. That position aligns with his reasoning in Trump’s election dispute, which he ordered should be first adjudicated by a circuit court judge.

“This court is designed to be the court of last resort, not the court of first resort,” Hagedorn wrote. “That is why we have historically been receptive to original actions only rarely. I hope we return there again.”

The lawsuit at hand was filed on behalf of a Dane County business owner and two Dane County residents. It contended that the county and the city of Madison, through its health orders, have unlawfully handed over their lawmaking authority to the city-county health department.

The lawsuit argued such authority can only be exercised through the Dane County Board and Madison City Council. WILL also contended Dane County’s ban on private gatherings in homes violates other state laws and constitutional rights.

The action was filed on behalf of Fitchburg gymnastics club Gymfinity, along with a resident from Verona and one from Stoughton whose children have been affected by the county’s sports restrictions.

The local order, which applied to people who do not live together, went into effect at 12:01 a.m. Nov. 18 and lasted until 12:01 a.m. Dec. 16. It required face coverings and limited the capacity for most businesses to 50%, along with many other provisions.

The order tightened the health department’s existing ban on mass gatherings, defined as “any planned event with a large number of individuals in attendance, such as a concert, festival, meeting, training, conference, performance, show, or sporting event.”

The health department has maintained its order was legal.

Three of the court’s conservatives, Chief Justice Patience Roggensack and Justices Rebecca Bradley and Annette Ziegler, dissented from the order, echoing their recent declarations in the Trump election disputes that the high court should not delay in taking up cases that involve fundamental liberties.

“Because personal liberty interests must be protected when brought to this court’s attention, and it is argued to us that (Public Health Madison and Dane County director Janel) Heinrich’s orders repeatedly contravene personal liberty interests, I would grant the petition to commence an original action in this matter,” Roggensack wrote.