Empower Wisconsin | Sept 16, 2020
By M.D. Kittle
MADISON — Dane County private schools received a reprieve last week from the local health department’s COVID-19 order, but will the Wisconsin Supreme Court’s ruling open the door to another round of statewide lockdowns of in-person learning?
If the past is any indicator, Gov. Tony Evers’ power-grabbing health secretary will seize on the opportunity to push her administrative power beyond constitutional limits. Doing so, however, would create another pitched legal battle that would go right back before the Supreme Court.
The court has agreed to hear and consolidate three lawsuits against Public Health Madison & Dane County and has issued a preliminary injunction against the agency’s order barring in-person education at all schools. The health department on Tuesday, citing statues, asked the court to vacate its own order.
The decision is a huge victory for Dane County’s private schools, forced to switch to an all-virtual learning model last month after the health department issued the 11th-hour order under the guise of COVID-19 concerns.
There are strong signs that the health department will ultimately lose in its defense of the health order, which requires pre-K-12 students in 3rd grade and up to learn remotely for at least the first quarter of the school year. The decision by the conservative-led majority states the petitioners are “likely to succeed on the merits of their claim.”
“While reserving the remaining claims for later disposition, we conclude that local health officers do not appear to have statutory authority to do what the Order commands,” the court ruled.
But the court order notes that state law gives specific powers to the state Department of Health Services, including the authority to “close schools and forbid public gatherings in schools, churches and other places to control outbreaks and epidemics.”
Rick Esenberg, president and general counsel for the Wisconsin Institute for Law & Liberty (WILL), says Team Evers could try to push a second state emergency and order schools shut down statewide — under the guise of a COVID-19 pandemic health crisis. Esenberg’s Milwaukee-based public interest law firm is representing some of the plaintiffs in the Dane County health lawsuit.
The civil liberties attorney said the potentially unresolved question would be if Department of Health Services Secretary-designee Andrea Palm could issue an order on her own or whether she would need legislative input to do so.
As the Supreme Court ruled in May on the lawsuit bearing the health secretary’s name, Palm violated state law when she extended Evers’ stay-at-home order without legislative oversight. One thing we have learned, is how much the liberal governor hates working with the Republican-led Legislature. This administration likes to act unilaterally, with no opposition.
But the court doesn’t fully address the closing of schools in the Palm case. Evers’ unelected bureaucrats could push the boundaries of their power in the name of public safety.
“We’re always worried about that because he’s done a lot of that,” Esenberg said. “I don’t know if he’s going to reach out and do that (force a statewide school closure order) so he can keep private schools in Dane County closed.”