Becker v. Dane Cnty.

• Citation: 403 Wis.2d 424,977 N.W.2d 390,2022 WI 63
• Decision Date: 08 July 2022
• Docket Number: 2021AP1343 & 2021AP1382
• Parties: Jeffrey BECKER, Andrea Klein and A Leap Above Dance, LLC, Plaintiffs-Appellants, v. DANE COUNTY, Janel Heinrich and Public Health of Madison & Dane County, Defendants-Respondents.
• Court: Wisconsin Supreme Court

403 Wis.2d 424
977 N.W.2d 390
2022 WI 63

Jeffrey BECKER, Andrea Klein and A Leap Above Dance, LLC, Plaintiffs-Appellants,
v.
DANE COUNTY, Janel Heinrich and Public Health of Madison & Dane County, Defendants-Respondents.

No. 2021AP1343 & 2021AP1382

Supreme Court of Wisconsin.

Oral Argument: March 8, 2022
Opinion Filed: July 8, 2022
Motion for Reconsideration Filed July 22, 2022

For the plaintiffs-appellants, there were briefs filed by Rick Esenberg, Luke N. Berg, Anthony F. LoCoco, Daniel P. Lennington and Wisconsin Institute for Law & Liberty, Milwaukee. There was an oral argument by Luke N. Berg.

For the defendants-respondents, there were briefs filed by Remzy D. Bitar, Sadie R. Zurfluh, and Municipal Law and Litigation Group, S.C., Waukesha. There was an oral argument by Remzy D. Bitar.

An amicus curiae brief was filed by Daniel R. Suhr and Liberty Justice Center, Chicago, for Liberty Justice Center.

An amicus curiae brief was filed by Terman Spencer, city attorney, Gregory P. Kruse, assistant city attorney, Claire Silverman, and Maria Davis for The City of Milwaukee and League of Wisconsin Municipalities.

977 N.W.2d 393

An amicus curiae brief was filed by Jessica L. Thompson, Matthew Fernholz, and Pacific Legal Foundation, Arlington, and Cramer, Multhauf & Hammes, LLP, Racine, for the Pacific Legal Foundation and National Federation of Independent Business Small Business Legal Center.

An amicus curiae brief was filed by Brian P. Keenan, assistant attorney general, with whom on the brief was Joshua L. Kaul, attorney general, for Governor Tony Evers and Attorney General Josh Kaul.

An amicus curiae brief was filed by patricia Epstein Putney, Melita M. Mullen, Jeffrey B. Dubner, Jessica Anne Morton, and Bell, Moore & Richter, S.C., Madison, and Democracy Forward Foundation, Washington, D.C., for the American Medical Association and Wisconsin Medical Society.

An amicus curiae brief was filed by Allison W. Boldt and the University of Wisconsin Law School State Democracy Research Initiative, Madison, for Legal Scholars.

An amicus curiae brief was filed by Jeffrey A. Mandell, Douglas M. Poland, Colin T. Roth, Daniel Lenz, Elizabeth B. Wydra, Brianne J. Gorod, Brian R. Frazelle, Miriam Becker-Cohen, and Stafford Rosenbaum LLP, Madison, Law Forward, Inc., Madison, and Constitutional Accountability Center, Washington, D.C., for Julian Davis Mortenson, Professor of Constitutional History.

KAROFSKY, J., delivered the majority opinion of the Court with respect to ¶¶1-28 and 44-45, in which ANN WALSH BRADLEY, DALLET, and HAGEDORN, JJ., joined, and an opinion with respect to ¶¶29-43, in which ANN WALSH BRADLEY and DALLET, JJ., joined. HAGEDORN, J., filed a concurring opinion. REBECCA GRASSL BRADLEY, J., filed a dissenting opinion, in which ZIEGLER, C.J., and ROGGENSACK, J., joined.

JILL J. KAROFSKY, J.

403 Wis.2d 429

¶1 We resolve whether local health officers may lawfully issue public health orders. This suit arises from a challenge to a local health officer's issuance of public health orders to prevent, suppress, and control a communicable coronavirus disease commonly referred to as COVID-19. The case before us does not challenge the wisdom or legality of any particular measure taken in these orders. The challenge instead raises more general statutory and constitutional questions about the local health officer's authority to issue an order at all, regardless of the measures it promulgates. Specifically, we address three issues: (1) whether Wis. Stat. § 252.03 (2019-20)¹ authorizes local health officers to issue public health orders; (2) whether Dane County Ordinance § 46.40 (December 2020),² which makes such public health orders enforceable by a civil citation, is preempted by state law; and (3) whether either of these provisions constitute an unconstitutional delegation of legislative power.

¶2 On the statutory question, we hold that Wis. Stat. § 252.03 grants local health officers the authority to issue orders. As for preemption, we hold that no state law preempts Dane County Ordinance § 46.40. Finally, on the constitutional question, we hold that a local health officer's authority to issue enforceable public health orders pursuant to Wis. Stat. § 252.03 and Dane

977 N.W.2d 394

County Ordinance § 46.40 does not run afoul of our constitutional separation of powers. Accordingly, we affirm the circuit court's judgment and order and remand to the circuit court for further proceedings.

403 Wis.2d 430

I. BACKGROUND

¶3 Since March 2020, Wisconsin's state and local public health officials have issued public health orders aimed at curbing the spread of the communicable COVID-19 disease caused by the SARS-CoV-2 virus and its variants. This includes Janel Heinrich, the local health officer and director of Public Health Madison & Dane County ("Health Department"), a joint health department created by an intergovernmental agreement between the governing bodies of Dane County (the "County") and the City of Madison (the "City"). Per their agreement, the local health officer is jointly appointed by both local governments' elected chief executive officers (the County's executive and the City's mayor), subject to confirmation by both local governments' elected legislative bodies (the County's board and the City's common council). The agreement charges the Health Department and its director with the duty to implement public health policies adopted by the County and City through local ordinances, budgets, and the agreement itself. The agreement also establishes the Board of Health for Madison and Dane County ("Board of Health"), comprising of one County board supervisor, one City common council member, three County residents, and three City residents. Under the agreement, the Board of Health governs the Health Department's administration and supervises its director.

¶4 Heinrich responded to the appearance of the communicable COVID-19 disease in her territory by issuing a series of orders from May 2020 until March 2022 that implemented measures to prevent, suppress, and control the disease's spread. She did so pursuant to her authority under state law that directs a local health officer to "promptly take all measures necessary

403 Wis.2d 431

to prevent, suppress and control communicable diseases," "do what is reasonable and necessary for the prevention and suppression of disease," and "forbid public gatherings when deemed necessary to control outbreaks or epidemics." Wis. Stat. § 252.03(1) - (2). Because COVID-19 spreads predominantly via respiratory droplets—released when an infected person breaths, coughs, sneezes, sings, or talks—that then contact the mouth, nose, or eyes of nearby persons, Heinrich's orders implemented measures that affected many aspects of daily life where people come in close proximity with others. These measures included requiring face coverings, limiting or forbidding gatherings, requiring sanitation protocols for particular facilities, limiting or forbidding certain sport activities, limiting businesses' allowable indoor capacity, and requiring physical distancing between individuals.

¶5 Around the time of Heinrich's fourth such public health order in June 2020, the County duly enacted Dane County Ordinance § 46.40 regarding the prevention, suppression, and control of communicable diseases. Relevant here, Dane County Ordinance § 46.40(2) makes it "a violation of [Dane County Ordinance ch. 46] to refuse to obey an Order of the Director of Public Health Madison and Dane County entered to prevent, suppress or control communicable disease pursuant to Wis. Stat s. 252.03." A violation of ch. 46 could result in a civil forfeiture of between $50 and $200 "for each day that a violation exists." Dane County Ordinance § 46.27(1).³

977 N.W.2d 395

¶6 Jeffrey Becker and Andrea Klein are two County residents impacted by the Health Department's

403 Wis.2d 432

COVID-19-related orders. In January 2021, they filed this lawsuit against the County as well as the Health Department and its director, Heinrich, challenging their legal authority to issue and enforce such orders. Several days later, the Health Department separately filed an enforcement action against A Leap Above Dance, LLC ("A Leap Above") alleging that A Leap Above disobeyed a public health order. Raising similar challenges as Becker and Klein against the Health Department's enforcement authority, A Leap Above joined Becker and Klein's suit as the third plaintiff (collectively "Plaintiffs"). The Health Department then dismissed its separate enforcement action, re-filing it as counterclaims in this suit.

¶7 Plaintiffs moved the circuit court to temporarily enjoin any enforcement of current and future public health orders while the case was pending.⁴ The circuit court declined to grant the temporary injunction. Because its rationale for denying Plaintiffs' motion included a determination that Plaintiffs' arguments lacked a likelihood of success on the merits, Plaintiffs asked the circuit court to enter summary judgment against them so they could appeal. The circuit court granted Plaintiffs' request and entered summary judgment against their claims but acknowledged that the Health Department's counterclaims against A Leap Above remain unresolved.

¶8 Plaintiffs appealed the summary-judgment decision; Becker and Klein as of right and A Leap Above with the court of appeals' permission.⁵ Following

403 Wis.2d 433

consolidation of the appeals and completion of the briefing, Plaintiffs petitioned to bypass the court of appeals. We granted Plaintiffs' bypass petition and further ordered supplemental briefing on our jurisprudence regarding the delegation of constitutional powers.

II. ANALYSIS

¶9 This case requires us to interpret Wis. Stat. § 252.03, determine whether state law preempts Dane County Ordinance § 46.40, and assess both provisions' constitutionality with respect to separation-of-powers principles. Each presents a question of law that we review de novo. See, e.g., Legue v. City of Racine, 2014 WI...