Dane County health order lawsuit rejected
The Wisconsin Supreme Court on Tuesday rejected a lawsuit challenging a Dane County health order issued to prevent Thanksgiving events from worsening the coronavirus pandemic in Wisconsin.
Conservative Justice Brian Hagedorn joined the Supreme Court’s three liberal justices to turn down a request to take up a lawsuit brought by the conservative Wisconsin Institute for Law & Liberty on behalf of a gymnastics center and parents of athletes.
The law firm bypassed lower courts to ask the state’s highest court to take up the matter — a practice known as seeking a petition for an original action, which Hagedorn lamented is gaining in popularity lately.
“This court is designed to be the court of last resort, not the court of first resort. That is why we have historically been receptive to original actions only rarely. I hope we return there again,” he wrote. “But these are unusual times. The COVID-19 pandemic has raised unique policy and legal challenges.”
Hagedorn said the suit, which argued the restrictions on family gatherings and sporting events are invalid because they were put in place by public health officials rather than the Dane County Board or Madison Common Council, should have been filed in circuit court.
Chief Justice Patience Roggensack, writing for the minority, said the issues at play warranted the court’s action.
“While this court has recently received a barrage of petitions to commence original actions, when it is presented to us that fundamental personal liberty is suppressed by an unelected official, we must act,” Roggensack wrote.
“Waiting until the matter proceeds through a circuit court and the court of appeals will be justice denied,” she wrote.
If the state Supreme Court had agreed to take up the lawsuit and agreed with the plaintiffs, city and county elected officials across the state would have had to vote on the finest details of their COVID-19 policies instead of leaving that work to health officials.
The Dane County Board and Madison
Common Council have given their combined public health department broad leeway to set such policies. The lawsuit contends elected officials can’t do that and must vote on specific restrictions before they can take effect.
Dane County Executive Joe Parisi said when the suit was filed in November that the legal advocacy group and others who have challenged emergency health orders were responsible for promoting skepticism of mitigation efforts, resulting in overwhelmed hospitals.
At the time of the lawsuit, Wisconsin was in the midst of one of the worst outbreaks in the country — overwhelming hospitals in all areas of the state.
“Conservative legal activists have
spent the better part of the past seven months fighting medicine and the only interventions available to slowing the spread of the deadly COVID-19 pandemic. Now, Wisconsin is in the midst of the greatest public health crisis in our state’s history because groups like this fought masks and social distancing for months, sowing chaos that’s now resulted in overflowing hospitals,” Parisi said then.
Those bringing the lawsuit filed the case directly with the state Supreme Court and asked the justices to rule within days.
“COVID-19 should be taken seriously. But these decisions must be made by the local governing body,” WILL’s president, Rick Esenberg, said at the time. “Banning private family gatherings just before Thanksgiving, while allowing Black Friday shopping, makes little sense.”
Plaintiff Jason Orkowski, who owns a Fitchburg gymnastics center, said the closure of his business Gymfinity during the health order that has been lifted “prevented these young women from continuing their training regime which, in turn, jeopardizes their participation in the 2020-21 gymnastics season and threatens their college recruitment and scholarship opportunities.”
Jeffery Becker, a Verona father of four children who play for the Madison 56ers, a competitive traveling youth soccer team, alleged the order had a profound impact on his children’s mental health.
“Soccer is what keeps my kids healthy and sane,” he said.
Andrea Klein of Stoughton, a third plaintiff whose sons participate in the Stoughton Youth Hockey Association, said the order would exacerbate the effects of isolation on children.
“Families and kids have already been isolated and struggling, and now being told we cannot be with loved ones for the Thanksgiving holiday feels life a knife being jabbed into an already very deep wound,” she said in an affidavit.
The health department’s order banned indoor gatherings of any size other than those with household members. Under that policy, extended family and loved ones weren’t able to get together inside for Thanksgiving.
The restrictions also applied to sports games and practices, group exercises, meetings, trainings, conferences and movies.
While some states have experienced surges in COVID-19 cases following Thanksgiving, Wisconsin may not be. New cases are trending downward, but deaths are not — likely a result of the peak of new cases in mid-November.
Karri Bartlett, chief of COVID-19 operations for Public Health Madison and Dane County, said in an interview in November that the county’s biggest concern was hospitals becoming more overwhelmed after Thanksgiving gatherings take place.
WILL, which is funded by the conservative Bradley Foundation, has been involved in other challenges to state and local policies meant to curb COVID-19.
The group has sued to overturn Democratic Gov. Tony Evers’ health order, including his mask mandate, and asked the high court to block the closure of Racine schools.