Conservative attorneys attack Dane County ban on gatherings

A conservative law firm asked the state Supreme Court on Monday to immediately block Dane County's ban on indoor gatherings and indoor sports, arguing the order will ruin Thanksgiving and subject young athletes to mental trauma.

The Wisconsin Institute for Law and Liberty filed a petition with the high court on behalf of two parents of young athletes and an indoor gymnasium. The petition asks the justices to take the case directly without waiting for it to wind through lower courts and issue an immediate injunction blocking the ban.

The firm argues the high court should take the case because many counties have been expanding their coronavirus ordinances and the state needs clarification on how much power local elected officials can delegate to health departments. Janel Heinrich, the director of Dane County and the city of Madison's joint health department, has “egregiously” seized power and is ruling the county and city “by decree," the firm contends.

No one immediately responded to an email sent to the joint health department seeking comment on the petition.

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Heinrich issued an order Nov. 17 prohibiting mass gatherings indoors. She amended it Friday to define such gatherings as any gathering of individuals who are not members of the same household. All indoor sports are considered a gathering under the order. Violations carry a $1,000 fine.

Heinrich put out the order as the state continues to grapple with a surge of infections and hospitals are overwhelmed by coronavirus patients. The state recorded 8,978 new infections on Nov. 11, a daily record. Dane County has seen scores of new cases daily since September. Health officials fear Thanksgiving celebrations will only exacerbate the spread and have been warning people to avoid gatherings this year.

WILL attorneys argue in their petition that the order illegally bans Thanksgiving celebrations, county officials have delegated too much power to Heinrich and the order violates constitutional rights of freedom of assembly. The petition states that plaintiff Andrea Klein, of Fitchburg, recently lost her grandmother and was planning to hold a family Thanksgiving gathering to honor her. She said she's worried about her family's mental health if they can't get together.

The petition warns that banning indoor sports will force gymnastics gymnasiums, indoor soccer fields and hockey rinks out of businesses while allowing all other businesses to continue operating.

Klein argued that she's a mother of two youth hockey players and losing the sport will hurt their physical and mental health. Another plaintiff, Jeffrey Becker, of Verona, said his children became “visibly shaken and despondent" when they learned their soccer club had canceled all activities due to Heinrich's order.

“The fact that the Health Department believes it has the power to fluidly interpret its own poorly drafted orders to decide moment-by-moment what is permitted and what is not only serves to highlight the problem with delegating so much power to a single, unelected official," the petition said.

WILL's chances of winning an injunction from the conservative-leaning Supreme Court look good. The justices struck down Democratic Gov. Tony Evers' stay-at-home order in May and blocked Heinrich's order closing Dane County schools in September. The court is currently considering whether to kill Evers' statewide mask mandate.

A state appeals court in October erased Evers' capacity limits for bars and restaurants. The Supreme Court is currently considering state attorneys' appeal.

Heinrich's orders have drawn intense criticism. She told the Wisconsin State Journal this month that people have called her and her staff “Nazis” and “evil” in emails, and protesters have gathered outside her home.


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