Supreme Court weighs whether to rein in Dane County Board's delegation to health agency – Madison.com

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The Wisconsin Supreme Court chambers. 
In a case stemming from several children not being able to play indoor sports because of Dane County’s emergency health orders, the Wisconsin Supreme Court is weighing whether to modify an elected body’s ability to hand over authority to an executive agency.
A conservative law firm representing Dane County plaintiffs and defendant Dane County have until Feb. 1 to tell the Supreme Court whether they want it to reconsider and modify current precedents on the “nondelegation doctrine,” or the idea that elected legislative bodies cannot pass the buck on decision-making to non-elected agencies and bureaucrats in most cases.
The doctrine became a focus of conservative groups around the country after the pandemic began, as a means to center power in Republican legislatures. Republicans in Wisconsin, spurred by business interests leery of government regulations, have for years tried to rein in the state’s executive branch agencies by revising the state’s rule-making process.
Pfizer says a booster dose of its COVID-19 vaccine appears to offer important protection against the new omicron variant. Pfizer and its partner BioNTech tested how well vaccine-produced antibodies could neutralize omicron in lab dishes. They found significant weakening after the standard two doses. But a booster dose increased antibody levels by 25-fold.
In this case, the alleged breach of the doctrine is a Dane County ordinance that made enforceable any order that the Dane County public health officer deemed necessary to control the pandemic.
Plaintiffs represented by the conservative Wisconsin Institute for Law & Liberty alleged in a lawsuit that Public Health Madison and Dane County director Janel Heinrich gained rulemaking power “without any (specified) duration or oversight by the county board, and she has used that authority since May (2020) to rule all aspects of life in Dane County.”
Because of the public health orders limiting indoor gatherings, one plaintiff’s children could not play indoor soccer and the other’s could not play hockey in Dane County, “causing them significant time and expense to drive outside Dane County to compete,” the lawsuit states.
If the Supreme Court agrees with the plaintiffs, city and county elected officials would have to vote on public health policy changes rather than delegate that power to health officials. On a statewide level, more power would rest with the Republican Legislature if the Supreme Court decides executive agencies have too much rulemaking authority.
“It is our position that the legislature ought not delegate major or significant policy questions to the executive branch or administrative agencies,” WILL president and general counsel Rick Esenberg said in a statement. “This violates the separation of powers which mandates that the legislature makes the law and the executive administers it.”
On a local level, Esenberg said, local administrative officers “should not be empowered to decide what the law on COVID restrictions should be.”
The Supreme Court rejected a similar case brought straight to the court in December 2020 but took this one in December 2021 after the plaintiffs filed the case in Dane County Circuit Court in January 2021, lost the case several months later and appealed it straight to the Supreme Court.
When the Supreme Court rejected the first lawsuit challenging health officials’ rulemaking authority, Justice Brian Hagedorn, who concurred in the 4-3 denial, wrote that the lawsuit raised “important statutory and constitutional questions” but said the case should begin in circuit court.
In 2020, the Supreme Court turned down Democratic Gov. Tony Evers’ stay-at-home order, after which local authorities began creating COVID-19 restrictions.
But those contested local orders are legal, Public Health Madison and Dane County said in a statement.
“We are confident that the Wisconsin Supreme Court will uphold the legality of our public health orders,” the agency said.
The lawsuit was brought by Jeffrey Becker, whose children play for a youth soccer team, and Andrea Klein, whose children play in the Stoughton Youth Hockey Association. A Leap Above Dance, a dance studio in Oregon, joined the case after Dane County sought action against the studio for allegedly violating the indoor gathering ban in late 2020.
“This case is not about what restrictions are appropriate during the ongoing COVID pandemic, which is admittedly serious,” the lawsuit states. “It is about who decides and how.”
The parties may reply to each other’s briefs by Feb. 15, the order said, and the case could be decided by this summer.
Estrellón, Chef Tory Miller’s 7-year-old upscale Spanish-influenced restaurant on West Johnson Street, off State Street, closed for good after first offering takeout then going on hiatus during the pandemic. In announcing its closing, Miller said his focus now is on his other restaurants, Graze and L’Etoile, both at 1 S. Pinckney St., on Capitol Square. Miller owns the restaurants with his Deja Food Restaurant Group partner, Dianne Christensen. Deja Food also had Estrellón.
In a text message, his explanation of Estrellón’s closure was: “Pandemic. Staffing. Mental and physical fatigue. No RRF (Restaurant Revitalization Fund). Protect L’Etoile. Keep my family and team safe and employed. All that.”
Miller Family Meat & Three, a Southern comfort-food carryout restaurant, which operated for about four months on the bar side of Tory Miller’s upscale, Spanish-influenced restaurant Estrellón, also closed. Its closure came at the same time as Estrellón’s.
Fresco, the fine-dining Food Fight restaurant on the top floor of the Madison Museum of Contemporary Art, ended its run in October. Caitlin Suemnicht, Food Fight restaurant group’s CEO, said Fresco’s lease was ending and the company had several reasons not to renew it. “Fresco’s a 15-year-old restaurant and we were starting to look like a 15-year-old restaurant,” she said, adding that lease negotiations with the museum took longer than expected, and by the time the company was ready to start construction, the restaurant needed to reopen from its COVID-19 hiatus.
Benvenuto’s Italian Grill, which opened across from Warner Park in early 2003, closed in October. “The lease for that location is up,” owner Brian Dominick said then. “All of the other locations are owned or are on long-term leases and will continue to be ready to serve our guests as we have for over 25 years.” Dominick said the closing was not COVID-19-related, adding that some of Benvenuto’s six other locations have “flourished” during the pandemic with carryout and delivery business. Dominick said the North Side restaurant needed remodeling, which didn’t make sense to do in a building he doesn’t own. Benvenuto’s has two other Madison-area locations, in Middleton and Fitchburg.
 
Lorraine’s Cafe on Monroe Street closed in July with no fanfare, not even so much as a heads up to Ken Kopp IV’s loyal customers, some of whom had been eating there since Kopp ran New Orleans Take-Out in the same location until December 2019. Kopp owned Lorraine’s with his wife, Sajia Kopp, and the couple moved to Taos, New Mexico, where Sajia’s mother lives. The decision to close wasn’t tied solely to the pandemic, but Kopp said early 2020 wasn’t an ideal time to open a new restaurant. The pandemic “sure didn’t help, but even without it, if everything was normal, we’ve talked about moving down there,” he said. “It’s definitely sad, but I was definitely ready for something different.”
The Barriques coffee shop on Atwood Avenue closed in October after a six-year run. Matt Weygandt, who owned the shop and has six other area Barriques Coffee Roasters and Cafes with partner Finn Berge, said that location didn’t bounce back from the pandemic “for whatever set of reasons.”
He said he and Berge needed to sign a renewal on the lease, and “it’s a location that has nowhere near come back and recovered the way the rest of our places have,” he said.
“We just didn’t feel comfortable signing up for a long-term obligation when we were uncertain how much of our pre-pandemic business we were going to be able to get back,” Weygandt said then.
Around Thanksgiving, Ting Cai Zhou closed Mr. Seafood, formerly Pho King Good, at 600 Williamson St. in the Gateway Mall, and opened Delicacies of Asia, at 506 State St., where Lotsa Stone Fired Pizza used to be.
 
The Cool Beans Coffee Cafe near East Towne Mall closed in September after 20 years and reopened in December as a café called Mercies Coffee. New owner Mallory Orr, who briefly worked at Cool Beans, said the name comes from a Bible verse. “It talks about God’s mercy being new every morning,” she said.
    
After 18 years, and ongoing health problems, the owners of People’s Bakery at 2810 E. Washington Ave., closed the business in February. Nabil Elghadban and Mari Nikoyan said the bakery at was successful, particularly when they sold their Mediterranean specialties at summer festivals.
The Avenue Club and the Bubble Up Bar, 1128 E. Washington Ave., a one-time Madison institution, closed to make way for a $25 million, 40,000-square-foot music center for Wisconsin Youth Symphony Orchestras. Food Fight’s CEO Caitlin Suemnicht said the company closed the restaurant in October 2020 after much deliberation because of COVID-19 restrictions. From April 2020 to August 2021, Food Fight worked with the Wisconsin Department of Health Services and Porchlight at three of its restaurants, including The Avenue, to provide meals for people staying in shelters.
The former Next Door Brewing at 2439 Atwood Ave., closed in August after eight years. New owners Thomas McVary, Peter Schroder, Tom Gosse and Michael Chronister, who had been regular Next Door customers, plan to reopen as Starkweather Brewing as soon as January.
Zoup!, a soup, salad and sandwich restaurant in Middleton, closed in February due to COVID-19, a spokesman for the company said. “Tried everything, tried everything: carryout, curbside, third-party delivery. There just were no customers,” said Richard Zimmer, who works in franchising for the chain.
    
The Pine Cone in DeForest closed in September with owner John McKay creating controversy by leaving a note on the door blaming the state and federal government for its demise. “Due to the decisions of your state government (Evers) and your federal government (Biden), The Pine Cone has been forced to close its doors after 40 years. Thanks for all your support,” the sign said. He later said the real reason he closed the truck stop restaurant at 6162 Highway 51, was because his lease was up. “That was just a little frustration. That was a bad decision,” he said about hanging up the handwritten sign. A separately owned Pine Cone restaurant in Johnson Creek is still operating.
The closure of Star Bar, a cocktail and craft beer bar on East Washington Avenue near Livingston Street, wasn’t the result of the pandemic, said its owner Hawk Sullivan. He said it was tough to make it in an event-based area, with The Sylvee music venue across the street. The bar would be busy for about 90 minutes before a show, and it was hard to have two bartenders come in just for a short time, he said. Star Bar was closed, like other bar-only businesses, for most of 2020. Sullivan said he opened in September 2020, with outdoor seating, for less than a month. Patrick DePula of Salvatore’s Tomato Pies next door took over the space for Dark Horse Artbar, an art gallery, bar, and performance art and music venue.
Yushen Chen partnered with Kira Wang to open a J-Petal franchise at 511 State St in the summer of 2020. Then, to save rent money during the pandemic, in March he moved the Japanese hand-held crêpe business in with Kung Fu Tea, another franchise he owns a half-block up. J-Petal crêpes stopped being offered in the tea shop about four months ago, an employee said.
Ground Zero Coffee “is now in the past. It will never come back,” said Lindsey Lee, who owned the shop at 744 Williamson St., for 22 years, and closed it in 2020, saying he’d reassess in early 2021 whether it would be reopening. Lee said his two Cargo Coffee locations, 1309 S. Park St., and 750 E. Washington Ave., were doing better than Ground Zero — especially the Park Street one — because they have drive-thrus. Lee said he made the final decision to close in March of 2021. “It was predicated on not being able to come to terms on a new lease and the need to focus on the other two shops.” He said his old space is being remodeled for an office.
The Icon, 206 State St., ran from 2007 to 2020. It wasn’t reported on the State Journal’s 2020 list because it wasn’t clear then it wouldn’t reopen. On Nov. 8, Valbon Beqiri, the owner of two restaurants in Fort Atkinson, opened The Botanist Social in its place.
Cranberry Creek Cafe operated at the corner of Bridge Road and Broadway until mid March 2020, when it had to shut down because of COVID-19. Jim Norton, who has owned Cranberry Creek for 17 years, said it has transitioned into a catering business and he uses its restaurant space as a banquet room for private parties. Norton said he doesn’t plan to reopen as a restaurant. “Nobody really wants to work anymore,” he said.
Buck and Badger Northwoods Lodge, at 115 State St., opened in November 2012. It’s unclear when it closed. A GoFundMe page set up by co-owner Julie Sosnowski in 2020, titled “Save Buck and Badger Northwoods Lodge from closing,” is no longer accepting donations. The restaurant’s number is not in service and its owners didn’t respond to calls and texts from a State Journal reporter. 
It’s unclear exactly when Union Corners Brewery, 2438 Winnebago St., closed. A call and text message to the brewery’s owner, Eric Peterson, to find out went unreturned in July. It opened in June 2019 with an ambitious food menu.
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The Wisconsin Supreme Court chambers. 
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