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On Whose Authority? Recent COVID-19 Lawsuits Challenge Claims of Constitutional and Statutory Authority

Back in May, Wisconsin Legislature v. Palm settled the question of whether the Wisconsin Department of Health Services had explicit authority to extend a state of emergency. (Short answer: no.) But as policies surrounding COVID-19 prevention continue full force, it looks like the Wisconsin Supreme Court will hear three more lawsuits challenging the authority of government officials: one touching on the governor’s powers, two others the authority of a county health department.

Brought by the Wisconsin Institute for Law and Liberty (WILL), Lindoo v. Evers challenges Governor Ever’s ability to call two states of emergency for the same crisis. Both the present state of emergency (Executive Order #82, issued in July) and the March state of emergency (Executive Order #72) arise from the COVID-19 pandemic in Wisconsin. During a state of emergency, which only last 60 days if not extended by the legislature, the governor can access emergency powers, such as implementing a state-wide mask mandate. WILL’s complaint notes the problem with multiple states of emergency:

The Governor may not unilaterally extend the state of emergency beyond 60 days, nor may the Governor avoid the law setting a 60-day time limit as set forth in § 323.10 by declaring multiple emergencies arising from the same biological agent without abatement or substantial suppression. To interpret the law otherwise, would allow one person rule by the Governor for what could be a virtually unlimited amount of time whenever the capacious and vague statutory definition of a “public health emergency” or “disaster” can be said to be present.

The second case, also brought by WILL, presents an original action to the Wisconsin Supreme Court requesting review of Madison & Dane County’s public health department’s order indefinitely closing all in-person, public and private schools for grades 3-12. In particular, the lawsuit challenges Public Health Madison & Dane County’s authority to close private schools and calls the order an infringement on parents’ rights to direct the education of their children.

The third case, James v. Heinrich, also involves a challenge to the public order closing private schools. Parents of students and Catholic St. Ambrose Academy brought the case represented by Misha Tseytlin of Troutman Pepper. The school caused a stir when its initial funraising request raised $70,000 for legal expenses in 19 hours. T