WILL Files Lawsuit Challenging Dane County Health Department’s Authority to Enact COVID Restrictions

Published on: January 20, 2021

Lawsuit in Dane County Circuit Court argues county board must approve health department’s restrictions

The News: The Wisconsin Institute for Law & Liberty (WILL) filed a lawsuit in Dane County Circuit Court, on behalf of two Dane County residents, challenging the Dane County health department’s legal authority to issue sweeping restrictions on all aspects of life in Dane County. This lawsuit is substantially similar to an original action WILL filed with the Wisconsin Supreme Court in November 2020. The Court voted not to grant WILL’s original action, 4-3, without addressing the merits of the case, but four Justices indicated the claims had substantial merit.

The Quote: WILL Deputy Counsel, Luke Berg, said, “Dane County’s health department has enacted some of the strongest restrictions in Wisconsin without any express sanction from local elected officials. This lawsuit asks the court to rein in the ability of local, unelected health officers to unilaterally issue sweeping restrictions.”

Background: WILL filed an original action to the Wisconsin Supreme Court in November 2020 challenging Emergency Order #10, an order issued by Dane County’s health department, as an overreach of the legal authority granted to local health officers and an unlawful delegation of authority from local elected bodies. In particular, WILL argued the new restrictions were not voted on by the Dane County Board.

The Wisconsin Supreme Court did not grant WILL’s original action on a 4-3 vote in December. Justice Hagedorn, who concurred in the denial, agreed with the dissenters that the petition presented “important statutory and constitutional questions that deserve judicial scrutiny,” but concluded that the case should begin in circuit court.

With Dane County’s restrictions firmly in place – replaced recently with Emergency Order #12 – WILL is filing a similar lawsuit in Dane County Circuit Court to ensure a court addresses the merits of WILL’s challenge to the legal authority of Dane County’s health department.

The sports restrictions, in particular, illustrate why a single, unelected official should not be permitted to rule by decree indefinitely. Sports are vital to the physical, mental, emotional, and social health of Dane County’s youth, and recent research from UW-Madison indicates sports do not meaningfully spread COVID. Accordingly, over ten school districts in Dane County have voted to restart athletics, but due to the restrictions have to travel outside the County to compete.

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