WILL Files Original Action in WI Supreme Court to Halt Latest Dane County Gathering Ban, Restrictions on Businesses

Published on: Nov 23, 2020

Dane County and the City of Madison have unlawfully delegated law-making power to the health department

The News: The Wisconsin Institute for Law & Liberty (WILL) filed an original action with the Wisconsin Supreme Court, on behalf of a Dane County business owner and two Dane County residents, asking the Court to halt the recent ban on all private gatherings in homes and on all indoor sports activities from Public Health Dane and Madison, the Dane County health department. The lawsuit argues that, through certain ordinances, Dane County and the City of Madison have unlawfully handed over local law-making authority to the health department, authority that can only be exercised by the Dane County Board and Madison City Council. The action also argues that Emergency Order #10, to the extent it prohibits private gatherings in homes and shuts downs sports-related businesses, also violates other statutes and constitutional rights.

The Quote: WILL President and General Counsel, Rick Esenberg, said, “The latest order from the health department in Dane County illustrates why a single, unelected and unaccountable health official should not be allowed to rule unilaterally by decree. COVID-19 should be taken seriously. But these decisions must be made by the local governing body. Banning private family gatherings just before Thanksgiving, while allowing Black Friday shopping, makes little sense.”

WILL Clients: Gymfinity, Ltd., Jeffrey Becker, and Andrea Klein.

Background: Public Health Dane and Madison issued Emergency Order #10 on November 17, one week before Thanksgiving. The order from the health department, in effect from November 18 to December 16, includes the following limits and prohibitions:

  • All indoor gatherings, of any size, and even in private homes, are prohibited.
  • All indoor sports activities are prohibited, regardless of the nature of the activities, size of the facility, or precautions taken.

WILL’s original action challenges Emergency Order #10 as an overreach of the legal authority granted to local health officers and an unlawful delegation of authority from local elected bodies. In particular, these new restrictions have not been voted on by the Dane County Board or the Madison City Council.

WILL’s client, Gymfinity, illustrates the irrationality of the current order. It operates a large, 18,000 square foot gymnastics training center and has taken extensive precautions to operate safely. They have established a rigorous screening protocol including a questionnaire, temperature checks, and hand washing. Inside the facility masks are required at all times and social distancing is enforced everywhere possible. They have adjusted schedules and rotations to limit contact, divided the gym into discrete sections, and have instituted a thorough cleaning regime between classes and between station rotations during classes. Due to these efforts, Gymfinity has not had any COVID-19 cases linked to the gym, yet Emergency Order #10 shuts down most of its business, while allowing restaurants, bars, coffee shops, and other retail establishments to remain open.

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