The Wisconsin Institute for Law and Liberty, a conservative legal group, announced today a new legal challenge against Dane county’s public health department. It’s the third time the group – better known as WILL – has challenged a COVID-19 emergency order issued by Public Health Madison Dane County (PHMDC), and its director, Janel Heinrich.
WILL argues Heinrich does not have the authority to issue public health orders without first seeking the approval of the Dane County board. It also argues local government granted PHMDC too much authority to make those decisions.
Luke Berg is one of WILL’s attorneys. He says the true goal of the suit is for the court to weigh in on the limits of unelected officials’ power.
“Our case is not primarily about what restrictions are appropriate, there are arguments on both sides. But the problem is that many people being harmed by the restrictions have no chance to be heard because these decisions are being made unilaterally by an unelected official,” Berg told WORT.
But this is only the latest in a string of challenges to public health orders issued by PHMDC during the pandemic — orders limiting gatherings, requiring masks, and enforcing rules in other spaces to fight the spread of COVID-19.
And today’s lawsuit is a rehash of a case filed with the Wisconsin Supreme Court last November. That suit was filed after PHMDC issued a restriction on mass gatherings before the Thanksgiving holiday. But the state’s high court rejected WILL’s request to hear that case directly.
In a 4-3 decision, the state Supreme Court dismissed that case on procedural grounds — saying the case shouldn’t have been filed as an original action, a type of case that bypasses lower courts. It’s a tactic frequently used in time-sensitive suits, and one that has rankled the court’s liberal justices and its key swing vote, Brian Hagedorn.
“This court is designed to be the court of last resort, not the court of first resort,” Hagedorn wrote in the November case. “That is why we have historically been receptive to original actions only rarely.”
Berg, WILL’s Deputy Counsel, says that the court’s decision not to strike down the issue on its legal merits opened the door for this new filing, which the firm has filed with a lower Dane County circuit court.
“The question was not do we win or lose the case, it was should the court hear the case,” Berg says. “Three justices thought yes, Justice Hagedorn thought no, but wrote a concurrent that said the issues raised here are important and substantial and should be decided. So we think that opened the door for us to refile in circuit court, and that’s what we’re doing here.”
WILL filed the case on behalf of Andrea Klein and Jeffrey Becker, two Dane County residents and parents. They argue that the emergency order’s restrictions, and in particular restrictions on youth sports, have had a negative impact on themselves and their families.
Another challenge from WILL, this time from September, argues PHMDC did not have the authority to close local schools. That was consolidated into a case that is currently pending before the Wisconsin Supreme Court.
PHMDC is managed by both Dane County and the City of Madison. City of Madison attorney Michael Haas says its defense is being handled by Waukesha attorney Remzy Bitar, who also represented the agency during WILL’s first challenge surrounding school closings.
Madison Mayor Satya Rhodes-Conway took aim at the conservative-leaning legal firm today.
“It’s just really telling that this week — when more Americans have died from COVID than died in World War II, that WILL continues to try and undermine our efforts to keep people safe, healthy and alive,” Rhodes-Conway wrote in a press release.
According to numbers from Johns Hopkins University, nearly 402,000 Americans have died from COVID-19. The U.S. Department of Veteran’s Affairs puts the total number of American deaths during World War II at around 405,000.
228 people in Dane County have died from COVID-19, and at least 5,334 more have died of COVID-19 in Wisconsin since the start of the pandemic.
Editor’s Note: PHMDC and Dane County’s legal counsel, Remzy Bitar, declined to comment on this story.
(PHOTO: Brian Standing / WORT News)