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In a split 4-3 vote, the Supreme Court of Wisconsin ruled that local health departments have the authority to issue public health orders without getting permission from elected officials first.

In a split 4-3 vote, the Supreme Court of Wisconsin ruled that local health departments have the authority to issue public health orders without getting permission from elected officials first, according to a Friday decision.

The lawsuit, from the conservative Wisconsin Institute for Law & Liberty, on behalf of two Dane County residents, challenged Public Health Madison & Dane County’s authority to issue restrictions aimed at preventing the spread of the coronavirus.

The January 2021 lawsuit was not about what public health restrictions were needed during the COVID-19 pandemic, according to the lawsuit, but about “who decides and how.” 

In her role as PHMDC director, Janel Heinrich issued 12 public health orders over the course of the pandemic, curbing the sizes of indoor and outdoor gatherings, requiring the use of face coverings and imposing limits on places of business, education settings and sports. 

The local health department has maintained that its orders were legal, citing state statutes that say local health officers “may do what is reasonable and necessary for the prevention and suppression of disease.”

WILL argued in this lawsuit, and in previous ones, that the restrictions were not voted on by the Dane County Board of Supervisors but imposed by the local public health department, contending this violates the non-delegation doctrine that legislative bodies may not give up their policymaking role to other entities. 

However, Brian Hagedorn and the three liberal justices on the state Supreme Court ruled that local health officers have the authority to issue orders, that no state law preempts Dane County Ordinance § 46.40 and that health officers' authority to issue enforceable public health orders is constitutional. 

In his concurring opinion, Justice Brian Hagedorn wrote the decision allows orders to be issued in general, “without care for any particular order's content or effect.” 

“The arguments the petitioners bring apply equally to orders issued during the present pandemic, as well as to future health scares large and small,” Hagedorn writes. “The petitioners in this case do not challenge the legality of any specific order Heinrich issued.”

Public Health Madison & Dane County is "pleased with the Wisconsin Supreme Court’s decision to uphold the ability of local health officials to issue orders to protect the public in health emergencies,” the department said in a statement. They emphasized the emergency orders appropriately exercised the powers given to local health departments in Wisconsin State Statute.

“Public Health Madison & Dane County took decisive actions during this pandemic to control a communicable disease and protect the health and well-being of our community,” the statement reads. “As a result, Dane County had one of the lowest rates of illness and hospitalizations in the state.”

Around the time of Heinrich's fourth public health order in June 2020, the county enacted Dane County Ordinance § 46.40, which makes it a violation to refuse to obey an order of the director of Public Health Madison and Dane County entered to “prevent, suppress or control communicable disease.”

In this case, plaintiffs Jeffrey Becker and Andrea Klein contended that they and their children have been directly affected by PHMDC’s restrictions, especially the sports-related restrictions. In January 2021, they filed this lawsuit against the county as well as the Health Department and Heinrich, challenging their legal authority to issue and enforce such orders.

While the state’s high court upheld that authority, Hagedorn pointed out that specific regulations imposed by a health department may still conflict with state or local laws, noting a previous state Supreme Court decision that struck down one of PHMDC’s rules.

But he said the petitioners in this case did not offer “evidence or analysis;” instead, they largely “recite general theories of government power and selective quotes from federal and state cases.”

“We’re disappointed the Court refused to bolster critical safeguards and accountability for unelected health officers," Luke Berg, the deputy counsel for WILL, said. "However, the Court left open that particular orders may have exceeded the health department’s authority, like the total gathering ban in November 2020."

Local officials support court decision

Madison Mayor Satya Rhodes-Conway called the decision an affirmation in the ability of local public health agencies to respond rapidly to emerging disease to keep communities safe.

"When Madison faced its first case of COVID-19 in February 2020, our public health systems leapt into action to learn everything they could about this novel virus and its threat to our community," Rhodes-Conway said in a statement. "Public Health Madison Dane County followed the emerging science, implemented best practices and used their authority prudently and effectively."

County Executive Joe Parisi said the ruling is a win for every resident of the community.

“This ruling ensures that our public health department will have the ability to keep our community safe — and that decision making will remain science-based,” he said in a Friday statement. “Our public health department’s careful, deliberate, and science-based actions during the pandemic are the major reason Dane County experienced one of the lowest per capita COVID death rates in the nation throughout the pandemic. We are grateful for their dedication and perseverance.”

State Sen. Kelda Roys, who represents the Madison area, called it troubling that “far right culture warriors were able to advance this far with their meritless case.”

“These GOP-aligned extremists will stop at nothing to destroy the ability of our government to function properly and protect public health,” Roys said in a statement to the Cap Times.

The Wisconsin Supreme Court also ruled Friday that unmanned drop boxes are illegal in the state, and voters must deliver their absentee ballots by mail or in-person to their clerks. 

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