August 8, 2022 – Public health orders issued during the pandemic by Dane County’s health officer complied with state law and the state constitution, the Wisconsin Supreme Court has ruled.

In Becker v. Dane County, 2022 WI 63 (July 8, 2022), the supreme court held (4-3) that the officer was authorized by a state statute to issue the orders.

The court also held that the county ordinance under which the orders were issued was not preempted by state law and that neither the statute nor the ordinance violated the separation of powers provision in the state constitution.

Justice Jill Karofsky wrote the majority opinion, joined by Justice Ann Walsh Bradley, Justice Rebecca Dallet, and Justice Brian Hagedorn, who wrote a concurrence.

Justice Rebecca Grassl Bradley wrote a dissenting opinion, joined by Chief Justice Annette Ziegler and Justice Patience Roggensack.

Orders, Then an Ordinance

Janel Heinrich, Dane County’s health officer, issued a number of orders between May 2020 and March 2022 in an effort to slow the spread of COVID-19.

The orders required people to wear masks and stay socially distanced; limited or prohibited gatherings; specified sanitation measures for certain facilities; limited or prohibited certain sporting activities; and placed limits on the indoor capacity for businesses.    

Henirich issued her fourth order related to the pandemic in June 2020. Around that time, the county enacted Dane County Ordinance 46.40. The order made it a violation to disobey an order of issued by the county health officer that was issued to control a communicable disease pursuant to Wis. Stat. section 252.03.

Jeffrey Becker and Andrea Klein filed a lawsuit in Dane County Circuit Court in January 2021 challenging the legal authority of the county and Heinrich to issue the orders. After the circuit court denied the plaintiffs’ request for a temporary restraining order, it entered summary judgment against them.

The plaintiffs appealed and petitioned to bypass the Wisconsin Court of Appeals; the supreme court granted the bypass petition.

State Statute Authorized Orders

Justice Karofsky began her opinion by concluding that section 252.03 authorized Heinrich to act by issuing orders.

The plaintiffs argued that the text of section of 252.03 does not specifically grant public health officers the authority to issue orders.

But Karofsky explained that the “‘common and approved meaning’” of the relevant portion of the statute – which specifies that a county health officer “may do what is reasonable and necessary for the prevention and suppression of disease” – clearly empowers local health officials to act by issuing by orders.

Justice Karofsky pointed out that another sentence in section 252.03(2) specifies that a local health officer “shall promptly take all measures necessary to prevent, suppress and control communicable disease.” 

The verb “take,” Karofsky concluded, “is broad and contains no definitional proscription against acting via order.”

State Law Doesn’t Preempt Ordinance

The plaintiffs argued that state law preempts Dane County Ordinance 46.40, noting that three state statutes dealing with the enforcement of public health measures demonstrated the legislature had withdrawn the power of municipalities to act in that area.

But Justice Karofsky explained that none of those statutes contained an express withdrawal of authority.

Moreover, she pointed out, one of the statutes, section 252.52, established a robust enforcement mechanism for public health orders. That confirmed that the county ordinance was congruent with the purpose and spirit of the state law rather than conflicting with it, Justice Karofsky explained. 

Statues Don’t Violate Separation of Powers

With regard to separation of powers, Justice Karofsky explained that under supreme court precedent, a legislative grant of authority is constitutional if it contains an ascertainable purpose and includes procedural safeguards that ensure conformity with the legislature’s purpose.

The state statutes at issue met those criteria, Karofsky concluded, because they specified who may act and with what power and under what circumstances.

“These textural limitations, read in their public health context, establish an ascertainable ‘general policy:’ disrupt the transmission pathways of contagious diseases,” Justice Karofsky wrote.

“These textural limitations also substantively restrict a local health officer’s pursuit of that general policy, allowing only public health measures reasonable and necessary to hinder the particular disease’s transmission.”

Dissent Damages Perception of Court

Justice Karofsky closed her opinion by arguing that the dissent erred by disparaging Heinrich.

“Such personal aspersions have no place in a judicial opinion,” Karofsky wrote. “While the direct and implied contentions that a local health official is a tyrant, an autocrat, a dictator, and a despot are fantastical, they do real damage to the public’s perception of this court’s work.”

Concurrence: Originalist Reading Required

The plaintiffs had asked the supreme court to revisit its line separation of powers cases and adopt a more forceful anti-delegation doctrine.

But in his concurring opinion, Justice Hagedorn explained that plaintiffs had failed to ground their arguments in an analysis of the state constitution as it was understood when adopted in 1848.

The plaintiffs, Hagedorn wrote, “largely recite general theories of government power and selective quotes from federal and state cases. Certainly Montesqieu and Madison inform the meaning of Wisconsin’s constitution, but they cannot serve as substitutes for a faithful originalist analysis of our constitution’s text and history.”

Dissent: Majority Ignores Sub-Delegation Doctrine

In her dissent, Justice R.G. Bradley argued that the majority failed to address the plaintiffs’ most persuasive argument: that Article IV, Section 22 of the Wisconsin constitution, which authorizes the legislature to delegate authority to county boards, prohibits county boards from sub-delegating that authority to county officials.

“The constitution does not give the Dane County Board of Supervisors any authority to empower a single, unelected bureaucrat to restrict the liberty of the people of Dane County,” R.G. Bradley wrote.

Dane County Ordinance section 46.40 violated Article IV, Section 22, Justice R.G. Bradley argued, and the majority “disturbs the people’s constitutional choices of who may exercise power over them, eroding the people’s fundamental freedoms.”

R.G. Bradley argued that Heinrich’s orders were both “oppressive” – she singled out an order issued in November 2020 that prohibited small gatherings in homes over Thanksgiving for special mention – and contrary to Article IV, Section 22.

“The founder’s ‘experiment,’ reflecting a cautious view of delegated county power, continues in its original form,” Justice R.G. Bradley wrote. “Our founders did not envision this ‘experiment’ with sub-delegation being corrupted by further levels of delegation to which the people never consented.”

Justice R.G. Bradley also argued that majority ignored several supreme court cases interpreting Article IV, Section 22 and striking down sub-delegations of legislative power.

“The County Board unlawfully gave [Heinrich] powers that no elected official in this state possesses: the power to write the rules, interpret their meaning, and impose punishments of her choosing for violations only she may declare,” Justice R.G. Bradley wrote.

“The ordinance by which the Board created this autocrat contains no legitimate limiting directives, instead incorporating by reference statutes similarly lacking any meaningful substantive constraints on her power.”