Professional Documents
Culture Documents
the authority granted to Defendants Janel Heinrich and Jeanette Kowalik. Those Orders
unlawfully restrict Plaintiffs’ constitutional rights, and because Defendants are not
“politically accountable officials of the state,”1 Plaintiffs have no redress other than to
seek an injunction. Defendants were not voted into office and cannot be voted out.
to any of the Plaintiffs. The Orders are neither neutral nor generally applicable and are
request that this Court enjoin the Orders and restrain these Defendants from issuing
1
South Bay United Pentecostal Church v. Newsom, 590 U.S. ___, 140 S.Ct. 1613 (May 29, 2020)
(Roberts, C.J., concurring).
FACTUAL BACKGROUND
Madison Dane Emergency Order #7 was first made available online on July 1,
2020, with an effective date of July 2, 2020.2 Milwaukee Order #4 became effective on
July 1, 2020.3 In less than two months, these two defendants have issued eleven (11)
Under Chapter 252 of the Wisconsin States, local health officers have the
following duties:
2
The first of seven (7) emergency orders by Defendant Heinrich became effective on May 13,
2020, before Dane County passed a new ordinance to “codify” the powers granted to her by
statute as the local health officer. That Ordinance states little more than that Defendant Heinrich
may “forbid public gatherings” in accordance with state law.
3
The first of four (4) orders by Defendant Kowalik was issued on May 14, 2020, and became
effective the same day.
2
(2) Local health officers may do what is reasonable and necessary for the
prevention and suppression of disease; may forbid public gatherings when
deemed necessary to control outbreaks or epidemics and shall advise the
department of measures taken.
See Wis. Stat. § 252.03(1), (2).
While chapter 252 states that both the state department and local health officers
may take all “necessary” measures to control or prevent communicable diseases, Wis.
Stat. 252.02(6); Wis. Stat. 252.03(2), the specific grant of power to local health officers
The powers granted to the State Department of Health Services are greater (not
less) than those granted to local health officers. Chapter 252 states:
Court has held that the all “necessary” measures language is constrained by the more
specific grants of power in Chapter 252, and rejected the Department’s attempt to use
broadly worded provisions in Chapter 252 to justify the same type of broad restrictions on
gatherings now put in place by Defendants Heinrich and Kowalik. See Wisconsin
Legislature v. Palm, 2020 WI 42, 391 Wis.2d 497, 942 N.W.2d 900, ¶¶ 43, 45, 48, 49, 50.
3
2. Ordinances granting powers to the Madison Dane County Health Officer.
Defendant Janel Heinrich is the Public Health Officer of Madison and Dane
County. Dane County recently enacted an ordinance charging the Public Health Officer
with “forbidding public gatherings when deemed necessary to control outbreaks or
epidemics.” Dane County Ordinances, § 46.40(1). The Ordinance was passed by the
This amendment codifies the powers of the Director of Public Health
Madison Dane County to prevent, suppress and control communicable
disease granted by state statute.
See Dane County 2020 OA-002, Amending Chapter 2 and Chapter 46 of the Dane
County Code of Ordinances Regarding Prevention, Suppression and Control of
Communicable Diseases.
Defendant Jeanette Kowalik is the City of Milwaukee Commissioner of Health.
Statute and ordinance. The City of Milwaukee Ordinances establish a process that
4
This notice may be served on the parties to be affected thereby by the
commissioner or by any police officer in the city in the same manner
as provided by law for the service of a summons in civil actions.
Cause may be shown by affidavit, and if in the opinion of the
commissioner no good and sufficient cause be shown why the
business, trade or profession should not be discontinued or removed,
the commissioner shall order the parties to discontinue or remove the
same within such time as the commissioner may deem reasonable and
necessary. The order of the commissioner shall be final and
conclusive.
Milwaukee City Charter and Code of Ordinances, §17-13.
Neither Madison Dane Emergency Order #7, nor Milwaukee Order #4, have an
ending date. The two orders are substantially similar for purposes of this Motion for a
5
(a). Madison Dane Emergency Order #7.
Madison Dane Emergency Order #7 goes far beyond forbidding “public
gatherings.” In fact, it does not “forbid public gatherings” at all, which is what the statutes
allow Defendant Heinrich to do. Rather, Emergency Order #7 says that no more than 10
people may be present at a “planned event” inside “any property” -- public or private,
family of more than 10 from planning a dinner together inside their own home, or from
An earlier version of the Madison Dane Emergency Order allowed families to
gather regardless of the family’s size, but every order after Emergency Order No. 2 has
limited what even families can do inside their own homes. Compare Emergency Order
No. 2, Section 3 (“Nothing in this Order prohibits the gathering of members of a single
household or living unit.”) with Emergency Order No. 6 (“A Mass Gathering inside
private property and private residence is permitted with ten (10) individuals or less.”).
A “mass gathering” is any “planned event” with whatever number of people
Defendant Heinrich says, ipse dixit, is a “large number.” Emergency Order #6 said a
“large number” was ten (10) people inside a private residence, and 50 people inside a
commercial property. Order #7 says a “large number” is ten (10) people inside any
property. See Emergency Order #6, Section 2 & 2.a.; Emergency Order #7, Section 2 &
2.a. So, a “planned” family gathering with more than 10 people (say, to celebrate a
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confirmation or first communion), a scripture study with 11 people, or 12 people inside a
large barn as part of a 4th of July celebration -- these are all prohibited by Emergency
Order #7.4
On its face, Emergency Order #7 subjects “religious entities” to the 10 person
rules applicable to businesses under “Section 4 of this Order.” Id., Section 7 (referring
back to Section 4). However, Section 4 requires that any planned “meeting” or mass
gathering must comply with the numerical limits set forth in Section 2. See id., Section 7
(referring the reader to Section 4) and Section 4 (referring the reader to Section 2).
Section 2 says that no more than 10 people may gather together inside any place. This
mean that a church body of more than 10 may not meet inside to worship under
#7 gives exemptions to those people and entities that Defendant Heinrich has selected, for
unspecified reasons. “Government” is exempt. “Human services operations” are exempt.
So are “infrastructure operations” and “manufacturing.” See Emergency Order #7,
Section 6. “These operations, as defined in Emergency Health Order #2, are required to
only follow Sections 4.b thru 4.e. and 4.i. and 4.j. of this Order.” Id. That means that
4
The categories, numbers and percentages utilized by these Orders do not appear to be based on
sufficient facts or data, or to be the product of reliable principles and methods. Down the line,
they are unlikely to meet the standards set forth in Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579 (1993) or the cases that flow from it. See generally Fed. R. Evid. 702.
7
these selected people and entities do not have to comply with the limits on how many
people may gather together in one place, because those limits are contained in exempted
Defendant Heinrich has given colleges and universities an exemption, too. See
Emergency Order #7, Section 3.e. Those organizations may determine their own “policies
universities or any other people or entities are exempt, other than Defendant Heinrich’s
Milwaukee Order #4 became effective on July 1, 2020. Milwaukee Order #4 has
no end date. It “shall remain in effect until a new order is issued or this Order is
Milwaukee Order #4 purports to be issued pursuant to Chapters 17 and 62 of the
Milwaukee City Charter and Code of Ordinances. The Ordinances empower Defendant
Kowalik to exclude infected people from work or school. See Milwaukee City Charter
and Code of Ordinances, § 17-14; to quarantine infected people. Id., § 62-9; to regulate
food handling and health care employment of those with communicable diseases. Id., §§
62-9 and 62-13; to limit the school attendance of infected students. Id., § 62-15; and to
take temporary control of buildings in order to treat or isolate infected people, provided
8
that the city shall “pay a just compensation for the use” of the buildings seized. Id.,
§17-17.
The City of Milwaukee Ordinances establish a process that Defendant Kowalik
Milwaukee, she must (1) provide notice, served in the same manner as provided by law
for service of summons; and (2) allow the affected parties to show cause why the closure
9
Order #4 turns the process required by §17-13 on its head. Order #4 dictates how
and under what circumstances every “business, trade or profession” may remain open,
rather than carrying out the required process to decide which “business, trade or
Like Madison Dane Emergency Order #7, Milwaukee Order #4 gives out many
exemptions. “Government” is exempt. See Milwaukee Order #4, Section 2. “Human
services operations” and “essential infrastructure” are exempt too. See id. “Distribution
centers” and “school construction” are exempt as well. Id. While Defendant Kowalik has
decided that “school construction” is exempt, she has ordered the schools themselves to
5. Madison Dane Emergency Order #7 and Milwaukee Order #4 impair
Plaintiffs’ constitutionally protected activities.
Plaintiff Daniel Quakkelaar lives in the City of Milwaukee, Wisconsin. See
Quakkelaar Dec., ❡ 1. He is the pastor at Friend of Sinners Mission Church, located at
March 2020, for health and safety reasons, before any government order required it to
Pastor Quakkelaar is also a veteran of the United States Army. Id., ❡ 3. He served
behind the Iron Curtain during the Cold War, in the occupied city of Berlin, in what was
then East Germany. Id. During his service there he was a Broadcast Journalist and was
10
Pastor Quakkelaar marched in and supported peaceful protests in the City of
Milwaukee in the wake of the death of George Floyd, in June 2020. Id., ❡ 5. The Mayor
of the City of Milwaukee participated in at least one of the same protest marches. Id., ❡ 6.
Pastor Quakkelaar observed that the numbers of persons present at marches and
protests in June 2020 in the City of Milwaukee were subject to no restriction, and
numbered in the many hundreds and sometimes thousands of persons. Id., ❡❡ 7, 8. The
marches and protests involved people gathering in close quarters, with person to person
contact, along with singing and chanting. Id., ❡ 9. He observes that this activity, including
singing, chanting, personal closeness and interpersonal activity of those present, is similar
to the activity that occurs during a church service or worship gathering. Id.
During the marches and protests, Pastor Quakkelaar observed water bottles being
passed from person to person, in a similar way that offering plates or communion trays
are passed through rows of people in some churches. Id., ❡ 10. At Friends of Sinners
way in which people gathered during the marches and protests were quite similar to the
type of communal church activities that have been used to justify stricter restrictions
Pastor Quakkelaar attended a COVID-19 Session for churches, led by the Mayor
of the City of Milwaukee, during the week of June 22, 2020. Id., ❡ 14. He previously
attempted to lobby the mayor for change in the City’s restrictions, both in person and in
11
writing. At the COVID-19 Session for churches, the Mayor stated that the City of
Milwaukee’s orders and limitations are the responsibility of Defendant Kowalik alone,
and not the Mayor himself or any elected official. Id., ❡ 15.
Plaintiff Angela Haug resides in the Town of Windsor, Wisconsin, in Dane County.
See Haug Dec., ❡ 1. Her household consists of herself, her husband, and a teenage child,
and she has an immediate family that exceeds 10 people. Id., ❡ 2.5 She also associates
with a group of friends and fellow believers that itself exceeds 10 people. Id.
Ms. Haug is a person of faith with sincerely held religious beliefs. Id., ❡ 3. She
believes she is called to share her faith with others, to gather with family and friends,
believers and non-believers, to share in fellowship, worship, ministry, prayer, and
Ms. Haug would like to exercise her religion by gathering with others in the
privacy of her own home, including with groups of more than 10 family and non-family
Ms. Haug wishes to gather with her immediate family in the privacy of her own
home, but Emergency Order #7 says she cannot do so because her immediate family
5
Emergency Order #7 prohibits certain family gatherings, including between parents and their
children, particularly in larger families. While “household” is not defined in the order, the
ordinary meaning of “household” is quite different than the ordinary meaning of “family.”
“Household” means “a house and its occupants” and does not include all the members of a
family. https://www.lexico.com/en/definition/household
12
exceeds 10 people. She also wishes to gather in her own home with groups of friends and
family members that exceed 10 people, without threat of punishment. Id., ❡❡ 6, 12.6
According to Emergency Order #7, Ms. Haug is prohibited from gathering with a
group of more than 10 people in the privacy of her own home. According to Emergency
Order #7, she also is prohibited from meeting outside her home in a restaurant or cafe
is a member of her “household.” See Emergency Order #7, Sections 5.a.iv and v; Sections
Under Emergency Order #7, Plaintiff Haug and Pastor Quakkelaar, or any two
Plaintiffs for that matter, are not permitted even to sit down at the same table at an
outdoor cafe anywhere in Dane County (except if they do so at a college or university,
which are exempt). See Emergency Order #7, Sections 5.a.iv and v; Sections 5.b.v and
6
Ms. Haug executed a declaration on June 30, 2020, with respect to Emergency Order #6. The
next day, Emergency Order #7 was released. For the limited purposes of this motion, Emergency
Order #6 and Emergency Order #7 are not materially different.
7
Each of the Plaintiffs have a First Amendment right to assemble, whether in Dane County or in
the City of Milwaukee. Any of the Plaintiffs who want to gather at the State Capitol for example,
or who want to freely exercise their religion anywhere in Dane County, has his or her rights
restricted by these orders.
13
According to Emergency Order #7 of Public Health Madison and Dane County,
violation is punishable under “Dane County Ordinance Sec. 46.40(2) ...” Id., Section 10.8
preliminary relief, it will suffer irreparable harm before final resolution of its claims; (2)
legal remedies are inadequate; and (3) its claim has some likelihood of success on the
merits. If the moving party makes this showing, the court balances the harms to the
moving party, other parties, and the public.” Eli Lilly and Co. v. Arla Foods, Inc., 893 F.3d
375, 381 (7th Cir. 2018), citing BBL, Inc. v. City of Angola, 809 F.3d 317, 323–24 (7th
of Health, 896 F.3d 809, 816 (7th Cir. 2018) (citation omitted).
of those “freedoms, for even minimal periods of time, unquestionably constitutes
irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976). “[W]hen an alleged
8
The Dane County website states that the Dane County Ordinances are available online “exactly
as they appear in their original printed form.” The Ordinances available online do not contain any
Section 46.40. We have included a copy of new Section 46.40, which was attached to the
minutes of the May 21, 2020 meeting of the Dane County Board.
14
of irreparable injury is necessary.” § 11A Fed. Prac. & Proc. Civ. § 2948.1 (2d ed.),
citing, inter alia, Doe v. Mundy, 514 F.2d 1179 (7th Cir 1975) (denial of constitutional
privacy right was irreparable harm) and Beerheide v. Zavaras, 997 F.Supp. 1405 (D.C.
Colo. 1998) (irreparable harm satisfied by allegation of deprivation of free exercise of
religion).
In cases like this one, irreparable harm and the lack of an adequate remedy
overlap: because Plaintiffs’ injuries are irreparable, the law provides no remedy adequate
to rectify them. E.g., Roland Mach. Co. v. Dresser Indus., Inc., 749 F.2d 380, 383 (7th
Cir. 1984).
“[I]ndividual rights secured by the Constitution do not disappear during a public
applicable to the states through the Fourteenth Amendment, are always in force and
restrain government action." Wisconsin Legislature v. Palm, 2020 WI 42, 391 Wis.2d
15
a. Defendants have encouraged other mass gatherings, but continue to
restrict Plaintiffs’ rights to gather.
While the statutes and ordinances permit Defendant Heinrich and Defendant
Kowalik to “forbid public gatherings,” forbidding certain public gatherings is something
they have not done. So much so in Madison that a large group “battered a state senator
and toppled two iconic statues outside the State Capitol” and “Dane County Sheriff David
how to participate in them, while simultaneously restricting Plaintiffs’ rights to assemble
and to worship. Defendant “Kowalik encouraged making sure your mask fits properly,
and bringing hand sanitizer to ensure proper hand hygiene.” See “How to Protest During a
Pandemic: Local health officials offer do's and don'ts that could save your life,” by
Likewise, the spokeswoman for Defendant Heinrich indicated that certain mass
gatherings are de facto exempt from Defendant Heinrich’s “Emergency” Orders,
9
https://wkow.com/2020/06/24/dane-co-sheriff-downtown-madison-is-currently-not-safe/
10
https://urbanmilwaukee.com/2020/06/02/how-to-protest-during-a-pandemic/
16
‘Individuals have the First Amendment right to protest,’” she said. See The Cap Times,
“Protesters plan Capitol demonstration to 'demand justice' following George Floyd's
Quakkalar Dec., ❡❡ 5-6. He did so along with the Mayor of the City of Milwaukee. See
id. Pastor Quakkalar, a U.S. Army Veteran who served behind the Iron Curtain and was
trained as a broadcast journalist to observe and report on events, notes that the protests
involve people gathering in close quarters, with person to person contact, along with
11
https://madison.com/ct/news/local/govt-and-politics/protesters-plan-capitol-demonstration-to-de
mand-justice-following-george-floyds-death/article_7214cd97-62de-56f4-8bc1-a98a1cce99be.ht
ml
12
See also, e.g.,
http://www.milwaukeeindependent.com/featured/thousands-march-from-bay-view-to-downtown-
in-justice-for-george-floyd-peaceful-protest/
https://urbanmilwaukee.com/2020/06/05/protesters-sing-happy-birthday-to-breona-taylor/
17
As the Mayor stated, many protestors “were well within 6 feet of each other and
people getting tested, leaving doctors concerned,” by Cearron Bagenda, June 11, 2020.13
preliminary injunction against New York Governor Andrew Cuomo and New York City
Mayor Bill DeBlasio who had either encouraged or participated in mass public
b. The Orders are not neutral and generally applicable, and therefore
subject to strict scrutiny.
“It is established in [the Supreme Court’s] strict scrutiny jurisprudence that a law
cannot be regarded as protecting an ‘interest of the highest order’ . . . when it leaves
Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 547 (1993) (ellipsis in original)
(quoting Florida Star v. B. J. F., 491 U. S. 524, 541-2 (1989)); see also Cent. Rabbinical
Cong. of U.S. & Canada v. N.Y.C. Dep't of Health & Mental Hygiene, 763 F.3d 183, 196
13
https://www.cbs58.com/news/area-coronavirus-testing-sites-are-seeing-a-decrease-in-people-gett
ing-tested-leaving-doctors-concerned
18
“While ‘[a]ll laws are selective to some extent . . . categories of selection are of
Cent. Rabbinical Cong. 763 F.3d at 197, quoting Lukumi, 508 U.S. at 542. “A law is
legitimate government interests purportedly justifying it.” Id. at 197, citing Lukumi, 508
U.S. at 535-38. “A law burdening religious practice that is not neutral or not of general
Express exemptions given to large groups of others, together with unwritten
exemptions for mass gatherings of protestors, undermine any claim of general
applicability. “[W]hen the government makes a value judgment in favor of secular
motivations, but not religious motivations, the government’s actions must survive
170 F.3d 359 365-66 (3rd Cir. 1999) (Alito, J.) The same is true here, where Defendants
have made a value judgment favoring mass protests over other constitutionally protected
19
c. Defendants have no authority to forbid private gatherings to begin
with.
The Wisconsin Statutes state that these Defendants have the authority to “forbid
public gatherings.” Wis. Stat. § 252.03(2). But Defendants have not actually “forbid
public gatherings,” which is the one thing the statutes say they can do. Rather massive
public gatherings recently have taken place in both Madison and Milwaukee.
Rather, Defendants Heinrich and Kowalik have restricted private gatherings, and
are attempting to regulate public gatherings according to rules made up from day to day
and week to week, rules subject to no review, no check and no balance. Nothing in
chapter 252 allows the Defendants to regulate or forbid private gatherings; to allow
favored “public gatherings” while restricting others; or to regulate public gatherings when
Unelected officials do not have the authority to create law applicable to all people
in their jurisdiction, or to promulgate a rule of general application in that jurisdiction.
That “kind of controlling, subjective judgment asserted by one unelected official” cannot
The unelected status of these Defendants is relevant. In an expedited, emergency
appeal to the U.S. Supreme Court, Chief Justice Roberts wrote separately regarding the
authority of the Governor of California to limit worship services, indicating that the
“Constitution principally entrusts ‘[t]he safety and the health of the people’ to the
20
politically accountable officials of the States …” South Bay United Pentecostal Church v.
Newsom, 590 U.S. ___, 140 S.Ct. 1613 (May 29, 2020) (Roberts, C.J., concurring)
(internal citations and quotation marks omitted). In that case, Governor Newsom was
Like Secretary Palm (and unlike Governor Newsom), Defendants Heinrich and
Kowalik, are unelected officials. Even if they were elected, Defendants Heinrich and
month.” See Palm, ¶ 41. While emergency powers are appropriate when there is no time
for deliberation or debate, “in the case of an ongoing pandemic, which lasts month after
month,” the government may not “rely on emergency powers indefinitely.” Id. Yet
14
We are aware of one state court that has addressed the authority of a local health officer to
continue to enter these types of orders after the Palm case. That court has enjoined the local
health officer’s order. See Supplemental Temporary Injunction Order in Yandel v. City of Racine,
Racine County Case No. 2020-CV-001045.
21
CONCLUSION
accountable officials of the state.” Their Orders have no end date, are subject to review
While governors govern and legislatures legislate, these defendants rule. Their
orders are edicts and should not be treated with the deference given duly enacted laws.
Plaintiffs. Madison Dane Emergency Order #7 and Milwaukee Order #4 should be
Defendants also should be enjoined from issuing any other “Order” that restricts
s/ Joseph W. Voiland
Joseph W. Voiland
Veterans Liberty Law
519 Green Bay Road
Cedarburg, WI 53012
Phone: 262.343.5397
Attorney for Plaintiffs
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