TO: Helbachs Supporters
SUBJECT: Helbachs V. PHMDC Case Memo
ATTORNEY: Brent Eisberner at Levine Eisberner LLC
UPDATE DATE: 03-04-2021
To begin, Helbachs would like to apologize for not updating its constituents over the preceding four months. Our attorneys held that it might be disadvantageous to issue updates regarding the legal action we have taken against PHMDC. The opposing counsel would undoubtedly read the public updates, and it would be as if we were giving the defending team our offensive playbook. However, given recent events described herein, we feel absolute silence is no longer required, allowing us to publish an update. This memo discusses the case timeline from filing the action to the present - our recent motion to the court for summary judgment and arguments therein.
1. July 13, 2020: A picture went viral, stating "mask-free zone" posted on the front door of Helbachs Coffee Middleton. This sign was a misrepresentation of our policy because we have no facial covering (mask) policy. We believe in freedom of expression and welcome patrons with or without a facial covering (mask).
2. July 15: Helbachs Coffee was visited by representatives of Public Health Madison & Dane County to "educate" the owners on facial coverings. The owners felt more harassed then educated during this visit by public officials.
3. July 15: Helbachs was cited for "failure to post signage stating mask required."
4. July 18: Following this confrontation by Public Health Madison & Dane County, there was a pro-mask protest against Helbachs Coffee.
5. July 20: Helbachs was cited again for, "failure to post signage stating mask required."
6. August 3: The Dane County Sheriff served Helbachs Café, LLC with a Notice of Intent to Revoke Food and Drink Licenses from Dane County Public Health.
7. August 10: Helbachs (the Plaintiff) filed a complaint (step 1 to a lawsuit) against the City of Madison, County of Dane, Janel Heinrich, Marci Paulsen, and Bonnie Koenig (the Defendants) All individuals in their official capacity. Link to Filing: Click Here.
8. August 18: Mediation with Public Health Dane County & Madison.
9. August 25: Hearing for Food License Revocation Cancelled.
10. September 1: Discovery commenced.
11. September 18: Court Date for Citations. Stayed until there's a court ruling regarding Helbachs Cafe, LLC V. PHMDC.
12. January 27, 2021: Deposition of Janel Henrich
13. February 22: Summary Judgment Motion Filed
Summary Judgment Overview:
Freedom of Speech is an equalizer that transcends every class in America, and it is a cornerstone of our democracy. Our founding fathers believed that “freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of American government.” - Justice Brandeis concurring in Whitney V. California. However, when agents of the radical left prohibit or compel speech, those same agents threaten our very democracy.
Helbachs Café, LLC (the “Plaintiff”) has filed a motion for partial summary judgment in its litigation against the City of Madison, County of Dane, and PHMDC officials (the “Defendant”). To expedite a ruling on two of our most formidable claims. Those two claims are (1) PHMDC Does Not Have Authority to Create and Enforce Emergency Order 8, and (2) PHMDC violated our First and Fourteenth Amendment rights. If one is not familiar with summary judgment it essentially allows the moving party (Helbachs) to reach a forthwith verdict. A party can move for summary judgment on some, or all, of their claims if there are no genuine disputes over material facts. We believe this is the case as it relates to the authority of PHMDC and the First and Fourteenth Amendment claims. The next section, Summary Judgment Arguments, discusses the two claims we have brought against PHMDC and the arguments to support those claims.
Summary Judgment Arguments:
Argument 1: PHMDC Does not Have Authority to Create and Enforce Emergency Order 8
Plaintiff contends that PHMDC does not have the authority to enforce the signage requirement under Emergency Order 8.
Sub-argument A: Notice of Signage Requirement was not Provided.
At some time on July 15, 2020, a newly added requirement for businesses to post public signage asking customers and patrons to wear masks was posted only to the PHMDC website. That very same day, at 12:20 p.m., Helbachs was issued a citation for a failure to “post signage required under Emergency Order 8, 4(i) and 4(k).” Under Emergency Order 8, 4(i) indicates that businesses should follow PHMDC requirements, and 4(k) indicates that businesses should post PHMDC’s workplace requirements for employers and workers. However, there is no public signage requirement within the order. Put simply, our argument is a person unaware of any wrongdoing cannot be found to be in violation of an ordinance that he had no reason to know existed, let alone be published that very morning with no press release, indication of intent, or notice to tell him otherwise. Likewise, businesses cannot be expected to check for updates multiple times throughout the day to ensure that it is in compliance with whatever updates or changes to an order that the government deems prudent to post only on their website, without announcement, on any given day.
Sub-argument B: Even if Notice was Provided, which it Was Not, Emergency Order 8 Violates the Non-Delegation Doctrine
To better understand state and local health officers' authority under Wisconsin State Statutes and Local Ordinances, we reference the most recent decisions by the Wisconsin Supreme Court in Wisconsin State Legislature V. Palm ("Palm"). In Palm, the Supreme Court of Wisconsin held that the combination of Wis. Stat. § 252.02(6), allowing the Department of Health State secretary to "implement all emergency measures reasonable and necessary to control communicable diseases," and Wis. Stat. § 252.25, making any "departmental order" criminally enforceable, together would pose a delegation problem if they allowed the Department of Health State secretary the authority to issue new orders, prohibited conduct via those orders unilaterally, and to enforce those prohibitions through criminal penalties. Palm, 2020 WI 42 ¶¶ 31–42. This poses a significant delegation problem; however, the Court avoided the non-delegation problem by holding that general health orders shall only be enforceable, general health orders would have to purport to regulate an array of normal activities during a pandemic must go through the rulemaking procedures of Chapter 227, thereby giving the Wisconsin Legislature oversight. Our case is the same type of non-delegation problem within Palm.
The Supreme Court's ruling in Palm limits the interpterion of "reasonable and necessary" stated within Wis. Stat. § 252.02(6), to abide by the constraints the Wisconsin statutes place on rulemaking procedures. Therefore, for any of PHMDC's emergency orders to be valid, the order would have had to go through traditional rulemaking procedures. That would transpire by Dane County, and the City of Madison respected boards/council having to vote on the emergency orders. By not going through traditional rulemaking procedures, Dane County and the City of Madison have transferred to their local health officer the power "to make laws," which is appropriately vested in the county board and city council. This endowment of power by Dane County and the City of Madison has given a Dane County health officer the authority to define the elements of new orders, create prohibited conduct unilaterally, and enforce penalties for that conduct. It makes the health officer a mini-county board and common council empowered to issue any prohibition to fight Covid-19 (or any other disease), creating a dangerous precedent for future pandemic health order procedures.
In summary, by preemptively making the health officer's orders enforceable, the county board and common council have given away unlimited, unilateral legislative power to a single, unelected individual within the executive branch of government—Janel Heinrich. However, it is well established that health officers do not have the authority to make unilateral rules or laws without getting a vote of approval or denial from the governing county board and common council. Therefore, PHMDC did not have the authority to create and issue Emergency Order 8. PHMDC has continued to act outside its authority in each subsequent emergency order. This unchecked authority leaves individuals and businesses, like us (Helbachs), at the mercy of one unelected official - Janel Heinrich. This unchecked authority, further, allows that very same unelected official to create new requirements, at any time and for any reason without limits, and to enforce these new requirements against every citizen of Dane County. All of this can also, according to Defendants, be done without providing any notice of any new requirements beyond the unannounced addition of a "bullet-point" found on PHMDC website in the "requirements" section.
Argument 2: Violation of the First and Fourteenth Amendment.
“If there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought, not free thought for those who agree with us but freedom for the thought that we hate” - Supreme Court Justice Oliver Wendell Holmes, Jr. As Justice Homes eloquently explains how the First Amendment applicable to the States through the Fourteenth Amendment is a cornerstone of our democracy. For the most part, people are free to express their views, engage in debate, and challenge government policy. Even when those ideas and viewpoints are unpopular, unconventional, or even mistaken, people are generally free to express them, and how a society treats those dissidents speaks volumes about how free that society truly is. Yet, it seems as though we have “sunk to the depth where the restatement of the obvious is the first duty of intelligent men.” George Orwell, A Review of Power: A New Social Analysis by Bertrand Russell, The Adelphi, Jan. 1939. Our second claim is to fight against the tyrannical government agencies that are intent to impede on our freedom of speech.
To begin, it is clear that Helbachs' "Mask Free Zone" ("The Sign") sign was protected speech because "signs are a form of expression protected by the Free Speech Clause." City of Ladue v. Gilleo, 512 U.S. 43 (1994) The sign was intended to be a political statement that Helbachs owners disagreed with the government's latest Order (Emergency Order #8). The First Amendment was meant to protect the right to voice one’s beliefs and guarantee's the "right to be free from retaliation by a public official for the exercise of that right." Suarez Corp. Indus. v. McGraw, 202 F.3d 676, 685 (4th Cir. 2000). When a public official engages in a retaliatory act, the government agent places informal restraints on speech allowing the government to produce a result which it could not command through a traditional course of action because it would be an apparent First Amendment infringement.
It is clear that public officials took an adverse action against Helbachs that would infringe on Helbachs free speech. Defendant gave Notice of Intent to Revoke Helbachs Food & Drink License, and within the notice, it states, "To avoid revocation the Licensee must; (1) comply with PHMDC Emergency Order #8 (2) require face coverings and (3) refraining from posting or communicating that the premises is a "mask free zone." Yet, nowhere in the Order is there a prohibition against posting signage critical of the government's Order, presumably because that would be a clear First Amendment violation. However, as stated previously, signs are a form of speech and have the equivalent protections as verbal speech under the First Amendment. Still, as the Notice states, if Helbachs wanted to avoid having its License revoked, it would have to refrain from exercising its freedom of speech. This action not only chills free speech but outright penalizes it.
It is evident that Helbachs' speech was a motivating factor in the Defendants' decision to issue citations and intent to revoke Helbachs Food & Drink License. In doing so, Defendants chilled, penalized, and deterred the exercise of Helbachs' free speech. After all, Helbachs was a coffee shop that only survived because it held a valid Food & Drink License to legally serve and sell food and beverage. Without such license, it would undoubtedly be forced to shut down. In essence, the licensing authority through PHMDC used its power to censor speech. PHMDC allowed businesses that exercised speech in favor of their Order to retain their Food & Drink License and abstained from penalizing those business but attacked companies like Helbachs that exercised speech antithetically to their Order. As Thomas Jefferson once said, "there is no justification for taking away individuals' freedom in the guise of public safety." The attempt to suppress political speech and infringe on individuals and businesses' Constitutional Rights by unelected health officials, or agencies, should not be permitted to persist in any Constitutional Republic.
Helbachs has decided to reopen its Madison location because we are done being voiceless. Our intention at the Madison location is to create a community where one can assemble to discuss and debate their thoughts freely. One of our founding fathers once said, "All tyranny needs to gain a foothold is for people of good conscience to remain silent." We are constitutionalists and believe that tyrannical government agencies can not infringe on our constitutional rights. We encourage you to come and enjoy your unimpeded constitutional rights with a great cup of coffee at Helbachs Madison.
Helbachs would like to invite you to its Madison location reopening freedom party on April 1st starting at 6 PM the address is 410 D’Onofrio Drive Madison WI.
The support of the freedom fund does not create any attorney/client relationships. A donation to the freedom fund does not grant any authority over decisions related to litigation. The funds donated will only be used for the legal defense of, and at the sole discretion of, Helbachs Café, LLC.
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