August 1, 2022 at 11:55 a.m.
High court affirms Dane County power to issue Covid orders
Hagedorn again provides the swing vote in 4-3 decision
High court affirms Dane County power to issue Covid orders
In the 4-3 ruling - with swing vote justice Brian Hagedorn joining liberals Rebecca Dallet, Jill Karofsky, and Ann Walsh Bradley - the court determined that state statutes grant local health officers the power to issue public health orders unilaterally.
The conservatives on the court - chief justice Annette Ziegler, and justices Rebecca Bradley and Patience Roggensack - dissented.
The Wisconsin Institute for Law & Liberty had brought the lawsuit on behalf of two Dane County residents. The lawsuit urged a judge to declare that Dane County health orders issued during the Covid-19 pandemic were illegal because they were enacted by unelected public health officials and not the Dane County Board of Supervisors or the Madison city council.
But the majority, in an opinion delivered by Karofsky, asserted that state statutes grant local health officers the authority to issue orders, and further found that a local health officer's authority to issue enforceable public health orders pursuant to the statute did not raise separation of powers concerns.
Officials in Dane County praised the decision.
"Today's ruling is a win for every resident of our community," Dane County executive Joe Parisi said. "This ruling ensures that our public health department will have the ability to keep our community safe - and that decision making will remain science-based. Our public health department's careful, deliberate, and science-based actions during the pandemic are the major reason Dane County experienced one of the lowest per capita Covid death rates in the nation throughout the pandemic. We are grateful for their dedication and perseverance."
State Sen. Steve Nass (R-Whitewater) condemned the decision and also denounced Hagedorn for again siding with liberals to form a majority after being supported politically by Republicans.
"It is unfortunate once again that justice Brian Hagedorn joined with the three extremely liberal justices to empower unelected public health zealots with vast powers to violate the liberty and constitutional rights of every citizen in Wisconsin through the fiat of local public health orders," Nass said.
Nass said the ruling opens the door for extreme abuse by local public health officials in the coming days and weeks.
"The good news is that the ruling of the state Supreme Court can be overturned early in 2023 by the Republican legislature and a new Republican governor," he said. "The existing flawed state statutes relating to local public health departments must be repealed and that can only be achieved if Wisconsin has a new governor in 2023."
The statutory framework
At issue in the decision was the empowering Wisconsin statutes, which state that local health officers may "promptly take all measures necessary to prevent, suppress and control communicable diseases" and may "do what is reasonable and necessary for the prevention and suppression of disease," and may "forbid public gatherings when deemed necessary to control outbreaks or epidemics."
The majority determined that those officers could act via order.
"Because plaintiffs challenge not the measures taken but rather the form in which those measures were promulgated, our interpretive focus is on the operative verbs 'take,' 'do,' and 'forbid,'" Karofsky wrote. "At the top, we accept plaintiff's concession that the local health officer's authority to 'forbid public gatherings' must include the authority to do so by order. Indeed, how else would a local health officer forbid a public gathering if not through an order?"
But the plaintiffs also maintained that the clauses in the statute using the verbs "take" or "do" fail to grant the authority to act by order.
"We observe that the common and approved meaning of the language used in these clauses - 'take all measures necessary to prevent, suppress and control communicable diseases' and 'do what is reasonable and necessary for the prevention and suppression of disease' - plainly support acting by order," Karofsky wrote.
But that wasn't the end of the argument, Karofsky observed, noting that the plaintiffs contended that the language in surrounding and closely related statutes indicated that the statute did not authorize action by order.
"According to plaintiffs, that is because these other statutes explicitly reference the authority to 'issue orders' or to 'order' specific measures," she wrote. "Because [the statute at issue] lacks similar language, the argument goes, [it] does not authorize local health officers to issue orders."
However, Karofsky observed, a fuller examination of the contextual evidence undermined the plaintiffs' interpretation.
"As plaintiffs acknowledged in briefing and at oral argument, the legislature uses language other than 'issue orders' or 'order' that nonetheless authorizes local health officers to act via order," she wrote. "Wisconsin Stat. § 252.06(1), for example, authorizes a local health officer to 'require' isolation of a person, quarantines, and disinfections, which would require an order. The next subsection, § 252.06(2), authorizes local health officers 'to quarantine, isolate, require restrictions or take other communicable disease control measures' under specified circumstances, all of which would require an order."
Even within the statute in question, Karofsky wrote, plaintiffs concede the language states "forbid public gatherings; authorizes local health officers to issue orders."
"Given the additional contextual evidence, we are not persuaded that the power to act via an order depends solely on the words 'issue orders' or 'order,'" she wrote.
Finally, Karofsky wrote, statutory history further supports the conclusion that [the statute at issue] grants local health officials the authority to issue orders.
"Dating back to Wisconsin's territorial days, public health laws authorized local officials to issue enforceable public health orders using language such as '[t]o take such measures,'"she wrote. "Specifically, the territorial law authorized 'the local board of health of any city, town or village' '[t]o take such measures as they may deem effectual for the preservation of the public health in said city, town, village or township,' among other powers. Critically, none of the listed powers used the language 'issue orders' or 'order'; yet the statute still criminalized the violation of 'any order, or rule, or regulation, made in pursuance of the powers granted to said board of health.'"
Later, Karofsky continued, following the 1918 Spanish Flu, the state legislature enacted a local public health law that gave the local board of health the power to "establish quarantine and to order and execute what is reasonable and necessary for the prevention and suppression of disease; to forbid public gatherings when deemed necessary to control epidemics . . . ."
The majority found that amendments in succeeding years that changed the phrase "to order and execute" to "may do what is reasonable and necessary" did not collapse the original meaning.
"In light of the broad common and approved meaning of [the statute at issue]'s language, the full context in which it appears, and that provision's statutory history, we hold that the authority to 'do what is reasonable and necessary for the prevention and suppression of disease' and 'take all measures necessary to prevent, suppress and control communicable diseases' both authorize acting via order," the decision stated.
Procedural safeguards
The court's majority brushed aside fears about empowering unelected officers.
"That is because a local health officer's discretion is subject to both state and local controls," the decision stated. "As with any legislative authority, the state legislature may curb exercises of granted power it deems excessive by amending [the relevant statute] or repealing the statute entirely. As plaintiffs acknowledge, our state legislature can react much more quickly to perceived excesses than the federal Congress, making this safeguard more robust than it might be for federal legislation."
What's more, Karofsky wrote, state courts may review an order issued pursuant to the relevant statute and Dane County ordinance and ensure that its measures conform to the laws' substantive limitations.
"For example, the subject of an enforcement action could argue the measure at issue is either not reasonable or not necessary for preventing the spread of a contagious disease, as [the statute] requires," she wrote.
On top of those state-level procedural safeguards were several local controls, Karofsky added.
"First, the health board can exert its supervisory and policy-making control over the local health officer," she wrote. "Second, elected officials in both the county and the city possess the power to remove the local health officer. The removal powers entrusted to local elected officials is a strong procedural safeguard because such officials are often more knowledgeable about and responsive to local preferences. Local officials can act decisively if a local health officer acts contrary to the preferred public health policy of the constituency."
And third, Karofsky stated, the county's board and the city's common council control the health department's annual budget and thus may leverage appropriations to affect a local health officer's actions.
"In sum, the ascertainable purpose evident in both [the statute] and Dane County [ordinance's] text and surrounding context, the history of substantively similar grants dating back to Wisconsin's first legislative code, and the substantial state and local procedural safeguards against arbitrary exercises of a local health officer's granted authority all lead us to conclude [that the statute and the ordinance] constitute constitutional grants of authority," she wrote.
Karofsky said several critical points needed to be stressed.
"First, our holding addresses only a public health officer's authority to issue public health orders; the validity of specific measures appearing in those orders is not before us," she wrote. "Second, nothing in this opinion should be read as departing from our existing precedent on separation-of-power principles. It remains the law that courts must review 'the nature of delegated power and the presence of adequate procedural safeguards, giving less emphasis to the former when the latter is present,' and we break no new ground regarding the limitations on delegations to or within local governments."
The non-delegation doctrine
In a concurring opinion, Hagedorn said he wanted to discuss the petitioners' request that the court revisit its precedents and revitalize a more robust, judicially-enforced non-delegation doctrine at both the state and local levels.
"Rooted in our constitution's separation of powers, the basic idea behind the non-delegation doctrine is that the assignment of distinct powers into separate branches - legislative, executive, and judicial - means the branch of government assigned certain powers may not delegate its core powers to another," Hagedorn wrote. "This case asks whether the legislature impermissibly delegated legislative power to local health officers across the state and whether the Board of Supervisors impermissibly delegated legislative power to Dane County's local health officer."
Negative, Hagedorn concluded.
"The constitutional claims raised by the petitioners do not succeed because the historical evidence weighs against the petitioners' arguments under the unique facts of this case," he wrote. "Alternative evidence of the original understanding may exist for this type of claim, but if it does, the petitioners have failed to present it. I remain open to more broadly reconsidering our approach to the non-delegation doctrine in future cases."
But that should begin with a careful analysis of the original understanding of the Wisconsin Constitution, Hagedorn asserted, and he said a text-and-history inquiry resolved the non-delegation claims without resorting to a judicially-designed implementing doctrine.
In Prehn, in which the court recently ruled that Frederick Prehn could remain on the Natural Resources Board even though his term had expired, Hagedorn wrote, after conducting a historical inquiry to determine whether the original understanding of the Wisconsin Constitution conferred broad removal powers on the governor, the court rejected the attorney general's argument, rooted in political theory and federal law, that that sort of control over appointment and removal was a core executive power.
"Instead, our research revealed that the original understanding of the removal power in Wisconsin was different, and suggested that the legislature was understood to have more of these powers under Wisconsin's constitutional design," he wrote.
A similar analysis in this case, Hagedorn continued, showed that, when the constitution was ratified, those participating in state government did not appear to understand that the constitution forbade giving local officials charged with protecting public health the authority to issue at least some orders of indeterminate character.
"Nor was it understood to be problematic if those orders were enforceable," he wrote. "That same general statutory authority has been amended and modified many times, but it continues in today's [statute]. If this arrangement on its face did not run afoul of the constitutional separation of powers in 1849, it is hard to see why it would today. Whatever theoretical non-delegation framework may be found in the Wisconsin constitution, this kind of empowerment of local health officials does not appear to violate it."
Public health overlords
Justice Rebecca Bradley, joined by Ziegler and Roggensack, dissented, saying the majority "insulated local government from the oversight of the town hall meeting - a beacon of representative democracy - subjecting the people to the whims of an unaccountable overlord."
The case involved the power to make the rules by which the people will be bound, a power the people have entrusted to state and local legislatures alone, Bradley wrote.
"Not surprisingly, when the people consented to submitting to the rules that will govern society, they carefully confined the exercise of such awesome power to those whom they elect," she wrote. "Should others attempt to rule over the people, their actions are beyond the law, even if they bear the imprimatur of a legislative body. Legislators have no power to anoint legislators; only the people do."
Bradley argued that the majority ignored the plaintiffs' principal and most persuasive argument. That argument was based in the state constitution, Bradley wrote, in which she said the people authorized the state legislature to delegate certain powers of a local, legislative, and administrative character to county boards.
"The original public meaning of this text, as confirmed by the historical record, reflects the founders' recognition of the non-delegation principle, on which the constitutional framers' vesting of separate powers in each branch was based," she wrote. "Because the people decide who may create the laws that will bind them, those to whom power has been delegated may not give it away. The people adopted an exception permitting the legislature to delegate lawmaking power to county boards (the members of which are elected), but those local governmental entities may not give the power to anyone else."
Indeed, Bradley continued, the court has long held the Wisconsin constitution does not permit county boards of supervisors to sub-delegate lawmaking power.
"Although Article IV, Section 22 authorizes the initial delegation from the legislature to the county boards, the constitution does not authorize any sub-delegation," she wrote. "Accordingly, this court has declared unconstitutional a statute enacted by the legislature authorizing 'a county board to delegate to the electors of the county a power by the constitution expressly delegated to the county board itself.'"
Simply put, Bradley asserted, 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. But, Bradley contended, that is exactly what Janel Heinrich, director of Public Health Madison & Dane County (PHMDC), did.
"Heinrich has exercised dictatorial powers for nearly two years, in contrast with her peers in other counties," Bradley wrote. "In this very case, Dane County fully admits Heinrich issued an 'emergency order.' PHMDC then posted 'guidance' on its website explaining how Heinrich defined certain key terms in that order. PHMDC later filed an enforcement action against A Leap Above Dance, LLC seeking nearly $24,000 in fines."
According to Dane County, Bradley wrote, around Christmas 2020 (nearly a year after the outbreak of Covid-19), the dance studio held a performance of the Nutcracker ballet.
"Dane County mislabeled this performance a 'high risk sport' as defined on its webpage - not in Heinrich's order," Bradley wrote. "For the apparent purpose of maximizing penalties, it declared that each of the eight segments of the ballet constituted a different event. The dance studio pointed out that the order's terms permitted 'unregulated youth programs,' an undefined phrase in the order. In its Orwellian doublethink, Dane County absurdly says ballet is a sport and not a youth program."
At oral argument, Bradley continued, plaintiffs' counsel claimed Heinrich had issued 23 different emergency orders.
"For the better part of two years, the people of Dane County have been subjected to a constantly shifting regulatory regime, rendering compliance illusory and objections futile," she wrote. " ... As but one representative example, Heinrich banned small gatherings in private homes over Thanksgiving, giving a mere week's notice of this diktat. She threatened $1,000 fines for violations."
A "public servant" who exceeds her lawful authority has no ground to argue she was "merely doing her job," Bradley proclaimed.
"As a government official, Heinrich has an obligation to perform her duties within constitutional confines even if a majority of this court is not willing to enforce those boundaries," she wrote. "History is replete with examples of abuses by public officials who rationalized their actions as 'just doing their jobs.'"
The facts of the case demonstrate the danger of allowing the delegation of core legislative powers to unelected bureaucrats, Bradley wrote.
"Heinrich prosecuted a local business for allegedly violating her vague order," she wrote. "The county board unlawfully gave her 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. 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."
As for procedural safeguards - that the state legislature may curb exercises of granted power it deems excessive - Bradley argued that the majority entirely missed the rationale underlying the non-delegation principle, that if the people did not authorize the legislature to give its power away, its exercise by anyone other than the legislature is unlawful, and the legislature's ability to 'curb' excess cannot cure the sub-delegation's constitutional infirmity.
"Conspicuously absent from [the statute] is any language granting local health officers the power to issue orders, a power [state statutes] explicitly grants to DHS," she wrote. "Under [another court case], 'if 'the legislature did not specifically confer a power,' the exercise of that power is not authorized.'"
The majority displaces the constitutional design for the exercise of lawmaking power with a 'technocracy' the majority favors, Bradley wrote.
"As Justice Patience Drake Roggensack described during oral argument in this case: 'Counsel, I give you that a dictatorship which is what Heinrich exercised for about two years is the most efficient manner of handling a problem you're focusing on, but it is not necessarily a democratic manner,'" Bradley wrote. "Efficiency bears a heavy price. A 'technocratic' approach to government 'drains public discourse of substantive moral argument and treats ideologically contestable questions as if they were matters of economic efficiency, the province of experts. It tells the common citizen he has no right to participate in government, for he is not a 'technical expert' and the complexities of modern life are 'beyond the reach' of his feeble understanding. 'This narrow[ing]' of 'democratic government' 'hollow[s] out the terms of public discourse, and produce[s] a growing sense of disempowerment.'"
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