Right-wing law firm challenges new Dane County mask order

A law firm that has helped to block state public health measures to prevent the spread of COVID-19 is now going after local restrictions as well.

The Wisconsin Institute for Law & Liberty (WILL) filed a lawsuit Wednesday challenging the mask order that Public Health of Madison & Dane County Director Janel Heinrich issued this week. The mask order takes effect Thursday.

WILL filed the suit directly with the Wisconsin Supreme Court, following a practice the organization has used several times.

Heinrich issued the health order in response to a nearly four-fold increase in the average, daily new COVID-19 infections over the last three weeks in the county. COVID-19 infections have surged statewide as well, primarily among unvaccinated people and primarily due to the delta variant of the coronavirus, which spreads much more quickly than the original virus that gave rise to the pandemic 18 months ago.

The Dane County order requires people age 2 or older to be masked when in enclosed, public spaces with people other than members of their own household. It remains in effect for 28 days. The order refers to the state public health law, which requires local public health officers to “promptly take all measures necessary to prevent, suppress and control communicable diseases.”

WILL, in its lawsuit, asserts that a June 11 ruling by a divided Wisconsin Supreme Court limited those powers, however. The 4-3 opinion — also in a case that WILL helped to bring against the Madison and Dane County agency — overturned the department’s 2020 school-closing order. The ruling stated the order was unlawful because the state’s public health law does not specifically authorize local health departments to close schools to control an epidemic.

The new lawsuit, on behalf of a Sun Prairie resident, states that the school-closing opinion “only confers a ‘series of discrete powers’ upon health officials, and if the power is not ‘specifically conferred,’ then ‘that power is not authorized.’” It seeks to extend the high court’s conclusion about school closings to include mask orders.

The lawsuit claims that with the order, Heinrich “has now attempted to wield nearly limitless powers just before schools are set to reopen, again disrupting private schools, churches, and local businesses.”

In response to the lawsuit, Public Health Madison & Dane County released a statement Wednesday afternoon, stating, “We are confident that our Face Covering Order is legal under the statute. We will not comment further on pending litigation.”

While WILL was not formally handling the lawsuit that went to the state Supreme Court ending the mandate earlier this year, that challenge made arguments identical to the ones that WILL had made in its own litigation against the state mask order.