Conservative Group Asks Supreme Court to Throw Out Dane County Gathering Ban

The Wisconsin Institute for Law and Liberty filed a petition for original action before the state's high court, seeking to throw out Dane County's ban on indoor gatherings.

By Will Kenneally

November 23, 2020

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Rick Esenberg

Wisconsin Institute for Law and Liberty President Rick Esenberg announces a lawsuit over Gov. Tony Evers' veto power July 31, 2019.

The conservative group Wisconsin Institute for Law and Liberty is asking the Wisconsin Supreme Court to throw out a Dane County order banning indoor gatherings.

The order—which went into effect Friday, and ahead of the Thanksgiving holiday—bans indoor gatherings of those not in the same household and limits similar outdoor gatherings to 10 or fewer.

According to Dane County public health officials, this comes as gatherings of 10 people carry a 32% chance of having at least one COVID-positive person in attendance due to the spread of the virus in the county.

The Wisconsin Institute for Law and Liberty alleges the county’s public health director overstepped her bounds by issuing the order, saying she has “rule[d] the city and county by decree.”

“Dane County and the City of Madison have unlawfully delegated near limitless legislative power to their local health officer to do whatever she deems ‘reasonable and necessary’ to combat the COVID-19 pandemic, without any duration or oversight from the county board or city council,” the group wrote in their brief.

In May, the Wisconsin Supreme Court ruled the state’s health secretary needed legislative oversight to issue a stay-at-home order, and the Wisconsin Institute for Law and Liberty says this doctrine should apply to county public health officers as well.

State law mandates local health officials “shall promptly take all measures necessary to prevent, suppress and control communicable diseases,” like COVID-19, but shall also report their progress to the local governing body.

While state law allows health officials to take “reasonable and necessary” action, the group alleges the Dane County public health officer’s actions go beyond that definition and violate individuals’ constitutional rights to free association.

The suit is brought by a group of Dane County residents, including the owner of a gymnastics facility, who says he stands to lose upwards of $40,000 in revenue having to close due to the order.

Dane County Exec. Joe Parisi denounced the suit in a statement, saying now is the time for unity rather than legal challenges.

“Conservative legal activists have spent the better part of the past 7 months fighting medicine and the only interventions available to slowing the spread of the deadly COVID-19 pandemic,” Parisi said.

“We are now in the midst of what was once the unimaginable. Our doctors and nurses have reached the point of literally begging for our cooperation and help, resorting to buying ads in newspapers,” he added, referencing an open letter from UW Health workers published as an ad in the Wisconsin State Journal. “This is not the time for more division and havoc that harms human health and results in lives lost.”

Parisi said the county will “vigorously defend” the current order.

The plaintiffs are asking the state Supreme Court to hear the suit, without going through lower courts, due to its broad constitutional implications. The court currently has a 4-3 conservative majority.

This story was updated with a statement from Joe Parisi.

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