Dane Co. judge denies injunction that would have thrown out local health orders

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MADISON, Wis. — A Dane County judge is denying a temporary injunction that would have thrown out the local health department’s emergency orders.

The request for an injunction, which was part of a lawsuit filed by conservative law firm the Wisconsin Institute for Law & Liberty and A Leap Above dance studio in Oregon, claimed  Public Health Madison & Dane County director Janel Heinrich did not have the power to issue orders that mandated behavior or put limits on businesses.

Dane County Circuit Court Judge Jacob Frost ruled against the request for an injunction Monday, saying that state law did in fact allow Heinrich to issue those orders as the official in charge of the local health department and that the business did not show the orders made irreparable harm to them.

“I dare not set aside my mantle as a member of the judiciary to legislate through statutory interpretation,” Frost wrote in his decision. “If Plaintiffs disagree with the statutes at issue, their recourse is with the Legislature, not the courts. I must not, I will not usurp the Legislature’s role by redrafting unambiguous statutes to mean the opposite of what they say.”

Frost cited a section of state law that he ruled gave Heinrich the power as the “statutorily mandated local health officer” to issue the orders.

“I will not call an apple an orange, a dog a cat, up down or left right. Neither will I ignore that the Legislature’s chosen language gives Ms. Heinrich great power to fight communicable disease,” Frost said.

Lawyers for WILL tried to argue state law only allowed Heinrich to educate and inform the public, making recommendations as opposed to mandates. But Frost ruled that argument “ignores common sense” and “neuters the Legislature’s words of all ordinary meaning.”

“The Legislature’s use of ‘enforce’ unamiguously demonstrates an LHO (local health officer) can compel compliance with the public health laws,” Frost wrote. “Ms. Heinrich is empowered to take affirmative action to compel obedience with state public health law and local ordinances.”

As part of his reasoning for denying the injunction, Frost also ruled granting the injunction would likely do more harm than good.

“The harms Plaintiffs complain of, though surely concerns with real consequences for Plaintiffs, pale in comparison to the possible loss of health or life that Ms. Heinrich strives to limit and prevent. The scales tip decidedly in favor of denying the Motion,” Frost wrote.

A Leap Above was fined more than $23,000 for more than 100 violations of Dane County’s gathering limits in January after a performance of The Nutcracker was held over the winter, even after the health department said it warned the studio not to hold the event.

The dance studio joined the lawsuit against PHMDC in February, claiming it did not violate the county’s order at the time. Officials for the health department said photos from the event proved the violations did in fact occur, and their investigation was able to prove 119 people were gathered for the event.