'Intrudes upon freedoms' or 'undermines legitimacy' of court: Justices weigh in on challenge to Dane Co. health order.

Byline: Michaela Paukner, mpaukner@wislawjournal.com

The Wisconsin Supreme Court narrowly decided to allow Dane County students to return to in-person classes, issuing an order with strong opinions for and against the petitioners' arguments.

The high court decided 4-3 to take up a challenge to a Public Health Madison and Dane County order that required students in grades 3-12 to attend online instruction because of the COVID-19 pandemic. It also issued a temporary injunction that immediately blocked the health order.

Chief Justice Patience Roggensack and justices Rebecca Bradley, Brian Hagedorn and Annette Ziegler made up the majority, and justices Rebecca Dallet, Ann Walsh Bradley and Jill Karofsky dissented.

Here's a summary of Thursday's order and the reasoning behind the decision and dissent:

The order

The order issued by the state Supreme Court on Thursday:

Granted petitions for leave to commence an original action and state Supreme Court assumes jurisdiction.

Consolidated three matters challenging the Dane County health order.

Required the filing of a single, combined brief within 30 days that shall not exceed 75 pages, followed by the filing of a single, combined brief by the respondents of not more than 75 pages.

Required an appendix to the petitioners' brief with a stipulation from all parties on the facts that are undisputed and the facts that may be in dispute.

Temporarily enjoined provisions of the emergency order prohibiting schools from providing in-person instruction.

Majority's explanation

The majority said that, judging by the briefing so far, the petitioners were likely to succeed on the merits of their claim.

"Multiple argumentsconstitutional, statutory, and administrativeare lodged against the Order," the order said. "While reserving the remaining claims for later disposition, we conclude that local health officers do not appear to have statutory authority to do what the Order commands."

The majority saidWisconsin Stat. 252.02 (201718) subsection (3) grants the Department of Health Services the power to close schools to control outbreaks and epidemics in one subsection, but the next section,Wis. Stat. 252.03, omits the power to close schools in its grant of authority to local health officers.

"This differential grant of power must be given full meaning and effect," the order said.

Lawyers for Janel Henrich, the director of Public Health Madison and Dane County, argued that she wasn't closing schools, just preventing...