Wisconsin Supreme Court back PHMDC on health orders, enforcement

MADISON, Wis. (WMTV) - The Wisconsin Supreme Court backed local public health agencies’ general ability to issue public health orders to prevent the spread of disease. The decision Friday in response to a challenge of orders issued by Public Health Madison and Dane Co. to help contain the spread of COVID-19.

The agency responded to the ruling by describing the steps it took to contain the pandemic as “decisive actions... to control a communicable disease and protect the health and well-being of our community. It credited those measures with helping the county record one of the state’s lowest rates of COVID-19 infections and hospitalizations.

In its verdict, the Justices wrote that state and county law allows PHMDC not only to issue the order unilaterally and without prior approval of city councils or county boards. The agency is also allowed to enforce them with civil penalties. The decision rejected the notion that the latter violated constitutional separation of powers.

Dane Co. Supervisor Jeff Weigand, who has previously pushed to block PHMDC mask mandates, criticized the decision, saying it upset the balance of power between the branches of government and placed to much power in the hands of unelected officials.

“This is exactly what [the Founding Fathers] had in mind when they wrote our Declaration of Independence which states ‘Governments are instituted among Men, deriving their just powers from the consent of the governed,’” he said.

For Dane Co. Executive Joe Parisi, on the other hand, letting a health department make decisions on emergency health policy be based on science. Similar to PHMDC’s reference to Dane County’s case and hospitalization rate, Parisi added the death rate remained lower in the county as well.

“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,” he continued.

Additionally, the state Supreme Court found no state law that would prevent the county statute, Dane County Ordinance § 46.40, that directly empowers the agency’s director to “promptly take all measures necessary to prevent, suppress and control communicable diseases within Dane County, including forbidding public gatherings when deemed necessary to control outbreaks or epidemics.”

Saying PHMDC officials with using its authority in health matters, “prudently and effectively,” Madison Mayor Satya Rhodes-Conway echoed Parisi’s comments about the lower death rate in relation to the rest of Wisconsin and credited them their quick reaction to the pandemic.

“When Madison faced its first case of COVID-19 in February 2020, our public health systems leapt into action to learn everything they could about this novel virus and its threat to our community,” she said.

Liberal-leaning Justice Jill Karofsky wrote for the majority that Wisconsin law clearly authorizes public health officers to issue such orders and has since the state was a territory.

In his concurring opinion, Justice Brian Hagedorn pointed out the decision allows orders to be issued in general. However, he wrote specific regulations imposed by a health department may still run afoul of state or local laws, noting a previous state Supreme Court decision that struck down one of PHMDC’s rules.

The decision marks the culmination of a lawsuit two parents filed in 2020 during the height of the COVID-19 pandemic. The plaintiffs challenged orders from Dane County’s health director banning indoor gatherings as unconstitutional.