Wisconsin Supreme Court recently made clear that public health officers do not have unlimited authority
The News: The Wisconsin Institute for Law & Liberty (WILL) filed an original action with the Wisconsin Supreme Court urging a review of the authority of the Dane County public health officer to issue a new county-wide mask mandate. The Wisconsin Supreme Court made clear in June that the powers of a local public health officer are limited and must be specifically conferred by a legislative body.
The Quote: WILL Deputy Counsel, Dan Lennington, said, “The courts have made clear that unelected public health officers do not have unlimited authority. Dane County’s health officer, simply put, doesn’t have the power to order universal masking, or anything else, without express legal authority.”
Background: Public Health Madison and Dane County, the Dane County health department, issued a new indoor county-wide mask mandate on August 17, for all individuals aged 2 and above. The new order will go into effect on August 19 and remain in place until at least September 16.
WILL is challenging the new order on behalf of a Dane County resident. The Wisconsin Supreme Court’s recent decision in James v. Heinrich (issued just sixty days ago) made clear that the powers of local public health officers are not unlimited and must be specifically conferred by a legislative body. Wisconsin law only confers a “series of discrete powers” upon health officials, and if the power is not “specifically conferred,” then “that power is not authorized.” In James, a majority on the Court made clear that Dane County public health officer, Janel Heinrich, violated the law when she ordered all Dane County schools closed in the fall of 2020.
This original action asks the Court to issue an injunction and review the authority of the Dane County public health officer to issue a county-wide mask mandate and whether the mask mandate constitutes an unlawful delegation of legislative power to an executive official.
- Emergency Petition for Original Action, August 18, 2021
- Emergency Motion for Temporary Injunction, August 18, 2021
- Memorandum in Support of Emergency Petition for Original Action and Emergency Motion for Temporary Injunction, August 18, 2021