Dane County health officer’s actions violate nondelegation doctrine
The News: Luke Berg, Deputy Counsel at the Wisconsin Institute for Law & Liberty (WILL), will participate in Wisconsin Supreme Court oral arguments in Becker v. Dane County, a lawsuit filed in January 2021 challenging the authority of the county health officer to issue sweeping orders without approval by the Dane County Board. WILL filed the case on behalf of two Dane County residents and a business in response to a series of emergency orders from Public Health of Madison and Dane County (PHMDC) that restricted life and commerce in Dane County.
Watch the Argument: Supreme Court oral arguments can be streamed live on WisconsinEye starting at 9:45 am.
Background: WILL filed an original action to the Wisconsin Supreme Court in November 2020 challenging the legal authority of Dane County’s health department to issue sweeping emergency orders that restrict life and commerce in Dane County. WILL argued the orders are 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 2020. 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.
WILL filed Becker v. Dane County in January 2021 as Dane County’s health officer continued to issue successive emergency orders without approval from the county board. The Dane County Circuit Court ruled in the summer in favor of the health department. WILL appealed and filed a petition to bypass to the Wisconsin Supreme Court. The Court granted that petition on December 20.
A decision is expected in the summer.
Supreme Court weighs whether to rein in Dane County Board’s delegation to health agency, Wisconsin State Journal, January 18, 2022