The case was brought forward by the Wisconsin Institute for Law and Liberty, a conservative legal firm, on behalf of a group of Dane County residents who say the emergency order’s restrictions on youth sports had a negative impact on their families and businesses. The lawsuit is the latest in a year-and-a-half long battle by WILL to fight mask mandates in Dane County.
WILL argues that Public Health Madison Dane County’s director Janel Heinrich did not have the authority to issue enforceable public health guidelines, such as mask mandates and limits on indoor gatherings by herself. Instead, says WILL, that decision needs to come from the appropriate legislative body – in this case, the Dane County Board.
Luke Berg is Deputy Counsel with WILL. He says that the case is about limiting the power of local officials so they cannot make sweeping changes outside of a legislative body.
“We represent multiple people and businesses who live in Dane County, and it is a challenge to the local health officials to enforce sweeping restrictions during COVID. Our position is that neither state law nor the constitution permit officials to dictate unilaterally this way,” Berg says.
WILL originally filed this lawsuit in August of last year, as Dane County reinstated their indoor mask mandate and COVID cases ramped up. WILL had attempted to move the case straight to the Supreme Court, but the case was handed to a lower court first. That lower court sided with the county and allowed the mask mandate to stand.
Today’s lawsuit is not the first lawsuit regarding local mask mandates filed by WILL. They had filed a similar lawsuit in November 2020, but the state Supreme Court voted not to take up the case in a 4-3 vote.
The argument boils down to what is known as nondelegation doctrine, a favorite of conservative legal theorists.
It postulates that only lawmakers can make legislative decisions, , and importantly, cannot delegate that decision-making power to administrative agencies. In this case, WILL argues that the public health ordinances are considered legislation.
Critics say the legal theory would undo much of the administrative workings of the government.
At today’s oral arguments, Berg says that Public Health Madison Dane County should have never been authorized by the county board to make these decisions.
“Our argument is that the problem lies in the ordinance. Because the statute does not authorize this, and the ordinance attempts to convert that power into the police power. But if this court concludes that the statute does allow this broad of powers by local health officials, then that’s the nondelegation problem,” Berg says.
Carlos Pabellon is interim counsel for Dane County. He says that the nondelegation doctrine only applies to state law, and even then it has many barriers it has to face.
“It is a novel theory, I think in today’s oral arguments they were quite candid that it is a new theory that they are trying to advance, insofar as they want it to apply to local government. And I think if you’re going to ask me the crux of the issue, I think that’s it right there. They are trying to shoehorn this nondelegation theory that up to the Wisconsin case law only really applies at the state level. What they are trying to do is somehow extrapolate that argument into a forum that really doesn’t quite fit that way, that being the County Board, and the County Board’s authority and the orders of the past, ” Pabellon says.
Pabellon further says that, not only did Heinrich act in a legal way, but she acted in a way that was needed from someone in her position.
“Quite frankly, I think the law provides that we can, and in some ways that we should. This was a unique and disturbing pandemic, in a sense that it came out of nowhere and impacted Dane County very seriously, and we had to take every measure that we could that was reasonable and necessary under law. So in short, I believe that the law provides that our local health officer through the board of health and through our county ordinances to take these measures, and to move forward with these measures to protect the public,” Pabellon says.
The case is still going forward despite Dane County’s indoor mask mandate ending earlier this month. Berg says that there are two reasons why WILL is continuing to push the lawsuit.
“There are two reasons. One of our clients is a dance studio, A Leap Above, that has a pending enforcement action against it based on order number ten, which by far was the most egregious of all of them. The case is still alive to A Leap Above because Dane County has not dropped that enforcement action. Then second, the health department was continuing to issue orders until a week ago, and the ordinance is still in place, so they could begin to issue orders again. So we are asking that the court declare that the ordinance is illegal, and that delegating this much power to a local health official violates the constitution,” Berg says.
Public Health Madison Dane County declined to comment, due to the lawsuit still being active.
A decision on the case is expected to come this summer.