Are there any limits on the power of government during a public health crisis?
Oct. 30, 2020
County governments across Wisconsin want to give broad, extra-constitutional authority to their public health officers, but a group called the Concerned Citizens in St. Croix County is pushing pack.
The county’s Health and Human Services (HHS) Committee started talking about the proposal in August. They believed it would not only help the county address the spread of COVID-19, but also future pandemics. It’s based off guidance from the Wisconsin Counties Association.
The Counties Association provides not only suggestions on what to include in new public health ordinances, it also provides templates for ordering people into isolation, releasing them from isolation, petitions to the court to force isolation/quarantine, and orders to comply with contact tracing or submit to a medical examination.
Pierce County has already adopted their own versions of the ordinance.
St. Croix County’s “Communicable Disease Ordinance” would allow the health officer to “promptly take all measures necessary to prevent, suppress and control communicable diseases.” That specifically includes banning public gatherings – which is protected by the Bill of Rights. That’s not all.
The ordinance would also allow the health officer to order the isolation of anyone with a communicable disease and anyone they’ve come into contact with. That includes people the health officer merely suspects of being sick. The health officer would be allowed to enter any building, after getting a warrant, to inspect individuals who may be sick.
The penalties for not complying would be hefty. Each violation carries a fine between $100 and $500, and each day of non-compliance is a separate violation.
The Concerned Citizens of St. Croix County drafted up their own model resolution for local governments to adopt that opposes the county’s plan. So far, the Towns of St. Joseph and Hudson have adopted the resolution unanimously. It focuses on how the county’s proposed ordinance violates Constitutionally protected rights.
“Section 1 of the Fourteenth Amendment to the Constitution of the United States of America states, ‘…No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws’,” the resolution states.
“The proposed Communicable Disease Ordinance is drafted in a manner wherein an unelected county official not only has the opportunity, but is required to ‘promptly take all measures necessary’, up to and including potential violation(s) of the Constitutionally-protected rights of the citizens of St. Croix County.”
Scott Cox, the county’s corporation counsel, disagrees.
The HHS Committee held a bizarre townhall meeting about the ordinance on October 7th. About 200 members of the public assembled in person. The committee all appeared remotely via video conference on a screen.
One member of the public challenged committee members, “do you believe in the constitution.” They all said they do, but Cox’s response was notable.
“I believe in the Constitution. However, sometimes constitutional rights have to be limited to protect people and keep people from dying,” Cox said.
Later, when asked about ensuring religious freedom, Cox said, “Constitutional rights – whether to liberty, speech, assembly, freedom of movement, religion, or autonomy – are held in our society on several conditions. The most basic and important of these conditions is that one’s exercise of their rights does not endanger another person’s rights – or the public welfare.”
He cited the US Supreme Court case, Jacobson versus Massachusetts, which allows for mandatory vaccination. Cox said it established that “the right to not be infected by disease is paramount [to all other constitutionally protected rights].”
Cox said everyone has the right to be “healthy and safe.”
Despite Cox’s impassioned defense of the ordinance, the committee was feeling the heat from the public. It voted to postpone the proposal indefinitely. The results of a survey on the matter were not publicly released.
The committee soon regained its courage. On Oct. 21st, the committee decided to put it back on the agenda for its November 18th meeting. It is expected to consider a new draft of the resolution.
The Concerned Citizens of St. Croix County are exploring their options if the ordinance is eventually adopted. They say they are considering filing an ethics complaint and a lawsuit against the county for violating their constitutional rights.