June 12, 2021

"The order from Public Health Madison and Dane County closing all county schools was illegal, unnecessary and unconstitutional."

Said Rick Esenberg, president of the conservative Wisconsin Institute for Law and Liberty, qutoed in "Wisconsin Supreme Court strikes down Dane County health department order to close schools" (Wisconsin State Journal). 

The order was from last August, but the court had place a hold on the order, so private schools that wanted to open did.

The court found that because state statute does not specifically allow local health officers to close schools during a public health emergency, Public Health Madison and Dane County director Janel Heinrich overstepped her authority, and it deemed flawed her reliance on a part of state statute that says people in her position can take all “reasonable and necessary” actions to protect public health.

“The power to take measures ‘reasonable and necessary’ cannot be reasonably read as an open-ended grant of authority,” Justice Rebecca Bradley wrote for the majority. “Doing so would swallow the rest of the statute and render it mere surplusage.”...

The decision was 4-3, split along ideological lines. 

Writing for the dissent, Justice Rebecca Dallet argued that state statute does indeed give Heinrich the authority to close schools in a public health emergency. “There is no textual evidence for the majority to conclude that when the legislature directed local health officers to take ‘all’ measures reasonable and necessary to control a disease outbreak, it did not mean exactly what it said,” she wrote. “Reading in to the statute a phantom restriction impossibly requires the Legislature to write statutes today that specifically address all potential situations in the future, even those ‘not readily imagined.’”


Ann Althouse said...

Owen writes:

Such verbiage flows naturally from the lawmaker’s pen. It helps build a reassuringly solid artifice , a shiny sharp new law. Which works...until it doesn’t. Which failure occurs when it encounters unanticipated or extreme conditions, where no text could work. Text is only a prefabricated prejudgment of what will be amiss and how it should be managed. In the crunch of an emergency it must give way to discretion, exercised by smart experienced brave sane people who can summon trust from the community they serve.

This particular example is a real trainwreck: “all” measures are authorized by the text, but only those which are both “necessary” and “reasonable,” but who will judge their necessitude? The person being authorized. And who will exercise the self-critical function of finding them to be reasonable? Why, again the person seeking to apply her authorized power. It’s circular. We all do this; it’s a sleight of hand, and one that is both reasonable and necessary. We write laws that leave to the person chosen to hold the post, much trust in their decency, courage and common sense. We have to.

Ann Althouse said...

K writes:

"Reasonable" should mean that the public health authorities followed their own internal guidelines for evaluating regulations. These include posting the scientific evidence leading to the regulation, receiving community input, and studying the effectiveness and sustainability of the regulation. In the case of Covid and the schools all this was ignored in Dane County. There was no evidence of transmission in children of school age at the start, the community's wish to have the schools open was ignored and, over time, it was seen that surrounding counties kept their schools open without increasing Covid transmission - and this last point was completely ignored by Dane County. But the Supreme Court didn't address the issue of irresponsible public health officials. Perhaps it cannot as Owen pointed out. Perhaps dereliction of duty must be addressed by criminal courts. Instead the Supreme Court answered a different question which might be put as follows: suppose a majority of children in a given community refused the regular vaccines - or refuse the covid vaccine - can the public health authorities close the school? The answer was no. This is significant because racism has been defined as a public health issue. Suppose a majority of parents refused to allow their children to attend a CRT seminar defined as immunization against racism and required for admittance to school. Could the public health authorities close that school. No. In the past certain religious tests have been required before attendance at universities was allowed and non-conforming universites have been closed. If racism is a public health issue the Test Acts may return as public health tests and if that happened we may be sure Dane County would adopt Test Regulations closing non-conforming public schools if it could. Then this Court decision, barring such Test Regulations, would seem far-sighted.

Ann Althouse said...

In response to K, above, Owen writes:

"Well said! My comment seems to have had the intended effect: which is to ask what fact-finding and risk-reward calculus were actually undertaken by the health czarina of Dane County. What were —or should have been— the pragmatic heuristic steps by that official to translate the (necessarily) vague general mandate of the law, into a working plan that protected the public’s health while still protecting its ability to educate its children? How should these interests be balanced? Who can measure and weigh them? How to adjust the initial arrangement with the arrival of new information (actively sought)? That is the tricky and thankless task that confronted this official; and which, in judicial hindsight, she failed to do well enough."

Ann Althouse said...

I think the analysis, here and in many places, was: There are so many unknowns, the worst case scenario is intensely dire, so err on the side of safety.