WCRIS v. Janel Heinrich

2021 WI 58SUPREME COURT OF WISCONSIN
CASE NO.: 2020AP1419-OA, 2020AP1420-OA, 2020AP1446-OA
COMPLETE TITLE: Sara Lindsey James,
Petitioner,
v.
Janel Heinrich, in her capacity as Public Health
Officer
of Madison and Dane County,
Respondent.
-----------------------------------------------
Wisconsin Council of Religious and Independent
Schools, School Choice Wisconsin Action,
Abundant Life Christian School, High Point
Christian School, Lighthouse Christian
School, Peace Lutheran School, Westside
Christian School, Craig Barrett, Sarah Barrett,
Erin Haroldson, Kent Haroldson, Kimberly
Harrison, Sheri Holzman, Andrew Holzman, Myriah
Medina, Laura Steinhauer, Alan Steinhauer,
Jennifer Stempski, Bryant Stempski, Christopher
Truitt and Holly Truitt,
Petitioners,
v.
Janel Heinrich in her official capacity as
Public Health Officer and Director of Public
Health of Madison and Dane County and Public
Health of Madison and Dane County,
Respondents.
-----------------------------------------------
St. Ambrose Academy, Inc., Angela Hineline,
Jeffery Heller, Elizabeth Idzi, James Carrano,
Laura McBain, Sarah Gonnering, St. Maria Goretti
Congregation, Nora Statsick, St. Peter's
Congregation, Anne Kruchten, Blessed Sacrament
Congregation, Amy Childs, Blessed Trinity
Congregation, Columbia/Dane County, WI Inc.,
Loretta Hellenbrand, Immaculate Heart of Mary
Congregation, Lorianne Aubut, St. Francis
Xavier's Congregation, Mary Scott, Saint Dennis
Congregation and Ruth Weigel-Sterr,
Petitioners,
v.
Joseph T. Parisi, In his Official Capacity as
County Executive of Dane County and Janel
Heinrich, In her Official Capacity as Director,
Public Health, Madison &
Dane County,
Respondents.
ORIGINAL ACTION
OPINION FILED: June 11, 2021
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: December 8, 2020
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
REBECCA GRASSL BRADLEY, J., delivered the majority opinion of
the Court, in which ZIEGLER, C.J., and ROGGENSACK, J., joined;
and in which HAGEDORN joined except for footnote 18. HAGEDORN,
J., filed a concurring opinion. DALLET, J., filed a dissenting
opinion in which ANN WALSH BRADLEY and KAROFSKY, JJ., joined.
NOT PARTICIPATING:
ATTORNEYS:
For the petitioners, there was an opening brief filed by
Richard M. Esenberg, Anthony LoCoco, Lucas T. Vebber, Luke N. Berg,
Elisabeth Sobic and Wisconsin Institute for Law & Liberty,
Milwaukee; with whom on the brief was Misha Tseytlin, Kevin M.
LeRoy, Troutman Pepper, and Hamilton Sanders LLP, Chicago,
Illinois; with whom on the brief was Andrew M. Bath and Thomas
More Society, Chicago, Illinois; with whom on the brief was Erick
Kaardal and Mohrman, Kaardal & Erickson, P.A., Minneapolis,
Minnesota; with whom on the brief was Joseph W. Voiland and
Veterans Liberty Law, Cedarburg; with whom on the brief was Brent
Eisberner and Levine Eisberner LLC, Madison; with whom on the brief
was Bernardo Cueto, Onalaska. There was an oral argument by Richard
M. Esenberg, Misha Tseytlin, and Joseph W. Voiland.
For the respondent, there was a brief filed by Remzy D. Bitar,
Sadie R. Zurfluh, and Municipal and Litigation Group¸ Waukesha.
There was an oral argument by Remzy D. Bitar.
For the petitioners Wisconsin Council of Religious and
Independent Schools, et al., there was a reply brief filed by
Richard M. Esenberg, Anthony LoCoco, Luke N. Berg, Elisabeth Sobic,
and Wisconsin Institute for Law & Liberty, Milwaukee.
For the petitioners St. Ambrose Academy, Inc. et al., there
was a reply brief filed by Misha Tseytlin, Kevin M. LeRoy, and
Troutman Pepper Hamilton Sanders LLP, Chicago, Illinois; with whom
on the brief was Andrew M. Bath and Thomas More Society, Chicago,
Illinois; with whom on the brief was Erick Kaardal and Mohrman,
Kaaradal & Erickson, P.A., Minneapolis, Minnesota.
An amicus curiae brief was filed on behalf of Attorney General
Josh Kaul by Colin A. Hector, assistant attorney general, and Colin
T. Roth, assistant attorney general; with whom on the brief was
Joshua L. Kaul, attorney general.
An amicus curiae brief was filed on behalf of Institute for
Justice by Lee U. McGrath, Minneapolis, Minnesota; with whom on
the brief was Milad Emam, Arlington, Virginia.
An amicus curiae brief was filed on behalf of Freedom from
Religion Foundation by Brendan Johnson, Patrick C. Elliott, and
Freedom From Religion Foundation, Inc., Madison.
An amicus curiae brief was filed on behalf of State
Superintendent of Public Instruction Carolyn Stanford Taylor and
Wisconsin Department of Public Instruction by Heather Curnutt,
Madison.
An amicus curiae brief was filed on behalf of City of
Milwaukee by Tearman Spencer, city attorney, and Gregory P. Kruse,
city attorney.
An amicus curiae brief was filed on behalf of Madison
Metropolitan School District and Monona Grove School District by
Sheila M. Sullivan, Melita M. Mullen, and Bell, Moore & Richter,
S.C., Madison.
An amicus curiae brief was filed on behalf of Madison Teachers
Inc., Wisconsin Association of Local Health Departments and
Boards, Wisconsin Education Association Council, Milwaukee
Teachers’ Education Association, Racine Educators United, Kenosha
Education Association, and Green Bay Education Association by
Diane M. Welsh, Aaron G. Dumas, and Pines Bach LLP, Madison.
An amicus curiae brief was filed on behalf of Governor Tony
Evers and Secretary–Designee of Department of Health Services
Andrea Palm by Sopen B. Shah and Perkins Coie LLP, Madison.
An amicus curiae brief was filed on behalf of Wisconsin Faith
Voices for Justice by Barry J. Blonien, Tanner Jean-Louis, and
Boardman & Clark LLP, Madison.
An amicus curiae brief was filed on behalf of Liberty Justice
Center, Alaska Policy Forum, Pelican Institute For Public Policy,
Roughrider Policy Center, Nevada Policy Research Institute, and
Rio Grande Foundation by Daniel R. Suhr, Reilly Stephens, and
Liberty Justice Center, Chicago, Illinois.
An amicus curiae brief was filed on behalf of League of
Wisconsin Municipalities by Claire Silverman and Maria Davis,
Madison.
2021 WI 58NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA
STATE OF WISCONSIN : IN SUPREME COURT
Sara Lindsey James,
Petitioner, FILED
v.
JUN 11, 2021
Janel Heinrich, in her capacity as Public
Health Officer of Madison and Dane County, Sheila T. Reiff
Clerk of Supreme Court
Respondent.
Wisconsin Council of Religious and Independent
Schools, School Choice Wisconsin Action,
Abundant Life Christian School, High Point
Christian School, Lighthouse Christian School,
Peace Lutheran School, Westside Christian
School, Craig Barrett, Sarah Barrett, Erin
Haroldson, Kent Haroldson, Kimberly Harrison,
Sheri Holzman, Andrew Holzman, Myriah Medina,
Laura Steinhauer, Alan Steinhauer, Jennifer
Stempski, Bryant Stempski, Christopher Truitt
and Holly Truitt,
Petitioners,
v.
Janel Heinrich in her official capacity as
Public Health Officer and Director of Public
Health of Madison and Dane County and Public
Health of Madison and Dane County,
Respondents.
2021 WI 58St. Ambrose Academy, Inc., Angela Hineline,
Jeffery Heller, Elizabeth Idzi, James Carrano,
Laura McBain, Sarah Gonnering, St. Maria
Goretti Congregation, Nora Statsick, St.
Peter's Congregation, Anne Kruchten, Blessed
Sacrament Congregation, Amy Childs, Blessed
Trinity Congregation, Columbia/Dane County, WI
Inc., Loretta Hellenbrand, Immaculate Heart of
Mary Congregation, Lorianne Aubut, St. Francis
Xavier's Congregation, Mary Scott, Saint Dennis
Congregation and Ruth Weigel-Sterr,
Petitioners,
v.
Joseph T. Parisi, In his Official Capacity as
County Executive of Dane County and Janel
Heinrich, In her Official Capacity as Director,
Public Health, Madison & Dane County,
Respondents.
REBECCA GRASSL BRADLEY, J., delivered the majority opinion of the
Court, in which ZIEGLER, C.J., and ROGGENSACK, J., joined; and in
which HAGEDORN joined except for footnote 18. HAGEDORN, J., filed
a concurring opinion. DALLET, J., filed a dissenting opinion in
which ANN WALSH BRADLEY and KAROFSKY, JJ., joined.
ORIGINAL ACTION. Rights declared; order vacated.
¶1 REBECCA GRASSL BRADLEY, J. Exercising our original
jurisdiction under Article VII, Section 3(2) of the Wisconsin
Constitution,1 we consolidate and review three cases challenging
1 Article VII, Section 3(2) of the Wisconsin Constitution
provides: "The supreme court has appellate jurisdiction over all
courts and may hear original actions and proceedings. The supreme
court may issue all writs necessary in aid of its jurisdiction."
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA
the authority of Janel Heinrich, in her capacity as a local health
officer of Public Health of Madison and Dane County (PHMDC), to
issue an emergency order closing all schools in Dane County for
in-person instruction in grades 3-12. Citing Wis. Stat. § 252.03(2017-18)2 as authority, Heinrich issued Emergency Order #9 ("the
Order") in an effort to decrease the spread of a novel strain of
coronavirus, COVID-19. The Petitioners3 contend that the Order
exceeds Heinrich's statutory authority under § 252.03 and violates
their fundamental right to the free exercise of religion under
Article I, Section 18 of the Wisconsin Constitution, as well as
parents' fundamental right to direct the upbringing and education
of their children under Article I, Section 1 of the Wisconsin
Constitution.
¶2 In response, Heinrich asserts that local health officers
have the statutory authority under Wis. Stat. § 252.03 to issue
school-closure orders. Further, she argues that the Order is
constitutional under the United States Supreme Court's ruling in
Jacobson v. Massachusetts, 197 U.S. 11 (1905), and that, even if
Jacobson does not apply, the Order does not violate the Wisconsin
Constitution.
¶3 We agree with the Petitioners and hold: (1) local health
officers do not have the statutory power to close schools under
2 All subsequent references to the Wisconsin Statutes are to
the 2017-18 version unless otherwise indicated.
3 The Petitioners include Sara Lindsey James, Wisconsin
Council of Religious and Independent Schools (WCRIS), St. Ambrose
Academy, parents of students in Dane County schools, and several
other schools and membership associations.
3
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA
Wis. Stat. § 252.03; and (2) Heinrich's Order infringes the
Petitioners' fundamental right to the free exercise of religion
guaranteed under Article I, Section 18 of the Wisconsin
Constitution, which Jacobson cannot override. Accordingly, those
portions of the Order restricting or prohibiting in-person
instruction are unlawful, unenforceable, and are hereby vacated.
I. BACKGROUND
¶4 In February 2020, Dane County authorities confirmed the
first diagnosis of an individual with COVID-19 in Wisconsin.4 The
number of cases throughout the state soon began to rise. On March
12, 2020, Governor Tony Evers declared a public health emergency
in Wisconsin. The next day, then Secretary-Designee of the
Department of Health Services (DHS), Andrea Palm, issued an order
mandating "the closure of all public and private Wisconsin schools
for purposes of [in-person] instruction and extracurricular
activities."
¶5 On March 24, 2020, Palm issued a statewide "Safer at
Home Order." Among other dictates, this order required all people
in the state to remain in their homes, prohibited non-essential
travel, closed all "non-essential" businesses, and——as relevant to
this case——closed "[p]ublic and private K-12 schools . . . for
[in-person] instruction and extracurricular activities." On April
COVID-19 is an acute respiratory syndrome spread through
4
close contact with a contagious individual. Center for Disease
Control, Coronavirus Disease 2019 (COVID-19): 2020 Interim Case
Definition (Apr. 5, 2020),
https://wwwn.cdc.gov/nndss/conditions/coronavirus-disease-2019-
covid-19/case-definition/2020/.
4
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA
16, 2020, Palm extended the "Safer at Home Order" for another
month. Palm's new order mandated that schools remain closed for
in-person instruction "for the remainder of the 2019-20 school
year."
¶6 In Wisconsin Legislature v. Palm, we invalidated many of
the mandates in Palm's extension of the "Safer at Home Order,"
declaring that the "Safer at Home Order" was unenforceable because
it "was subject to statutory emergency rulemaking procedures
established by the Legislature." 2020 WI 42, ¶3, 391 Wis. 2d 497,
942 N.W.2d 900. However, this court did not address Palm's mandate
closing schools for in-person instruction. Id., ¶3 n.6.
Accordingly, schools throughout Wisconsin finished their
instruction for the 2019-20 school year on virtual platforms
pursuant to the statewide "Safer at Home Order."
¶7 Following this court's decision in Palm, PHMDC and its
local health officer, Janel Heinrich, began issuing a series of
emergency orders governing Dane County. Many of these orders
regulated COVID-19 safety protocols in public and private schools
throughout the county. As they relate to schools, Heinrich's
emergency orders were as follows:
1. On May 13, 2020, Heinrich issued Emergency Order #1, which
"adopted the provisions" contained in the "Safer at Home
Order," including the mandate closing schools.
2. On May 18, 2020, Heinrich issued Emergency Order #2, which
expressly reiterated that public and private K-12 schools
must stay closed for in-person instruction, but allowed
them to provide "[d]istance learning or virtual learning."
5
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA
The order also stated that higher education institutions
may remain open only "for purposes of facilitating distance
learning, performing critical research, or performing
essential functions."
3. On May 22, 2020 and June 5, 2020, Heinrich issued Emergency
Orders #3 and #4, respectively. These orders, among other
edicts, maintained the closure of K-12 schools, but allowed
higher education institutions to "determine policies and
practices for safe operations" and to open dormitories with
"strict policies that ensure safe living conditions."
4. On June 15, 2020, Heinrich issued Emergency Order #5, which
re-opened K-12 schools for "pupil instruction and
extracurricular activities" effective July 1, 2020. The
order also stated that, in order to re-open, schools must,
inter alia, "[d]evelop and implement a written hygiene
policy and procedure . . . [and] a written action plan for
a COVID-19 outbreak at the school."
5. On July 7, 2020, Heinrich issued Emergency Order #8. This
order, in anticipation of schools starting the school year
with in-person instruction, outlined a series of safety
protocols. The order stated, among other things, that
"[i]ndividual groups or classrooms cannot contain more than
fifteen (15) students if the students are age 12 or
under . . . [or] more than twenty-five (25) students if
age 13 or older." The order also stated that schools must
"[d]evelop and implement a written protective measure
policy and procedure that includes . . . [e]nsuring
6
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA
students are at least six (6) feet from other students[,]
[e]nsuring employees are provided with and wear face
coverings[,] [and] [e]nsuring that student and staff
groupings are as static as possible[.]"
In reliance on Emergency Orders #5 and #8, some schools in Dane
County opened for in-person instruction (or were preparing to open
for in-person instruction), including the petitioner schools.
¶8 However, on August 21, 2020, three days before the start
of the 2020-21 school year for many schools, Heinrich released
Emergency Order #9, which closed all public and private schools
for in-person instruction for students in grades 3-12.5 The Order
exempted students in grades K-2, so long as the schools provided
an alternative virtual learning option.6 The Order further stated
that, even though in-person instruction was prohibited for
students in grades 3-12, schools could continue to operate in
person as "child care and youth settings." As a rationale for the
mandate, the Order explained that "[t]his remains a critical time
for Dane County to decrease the spread of COVID-19, keep people
healthy, and maintain a level of transmission that is manageable
by health care and public systems." The Order acknowledged that
a "number of systematic reviews have found that school-aged
children contract COVID at lower rates than older populations" and
5In relevant part, the Order stated: "Public and private
school buildings and grounds are open for in-person student
instruction for grades kindergarten through second (K-2) only."
6On September 1, 2020, Heinrich amended the Order to also
allow in-person instruction for any qualifying students with
disabilities.
7
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA
that "[o]utbreaks and clusters among cases aged 5-17 have been
rare." Heinrich cited Wis. Stat. § 252.03(1), (2), and (4) as
authority for issuing the Order.
¶9 Although in-person instruction was forbidden for grades
3-12, the Order allowed all higher education institutions to remain
open for in-person instruction, allowing them "to determine
policies and practices for safe operation" and to keep open their
student dormitories so long as they continue to enact "strict
policies that ensure safe living conditions." The Order further
allowed many businesses to conduct in-person operations, including
bars, salons, barber shops, gyms, fitness centers, water parks,
pools, bowling alleys, and movie theatres, subject to various
capacity limitations and social-distancing guidelines.
¶10 One day after Heinrich issued the Order, Sara Lindsey
James, a parent of two students enrolled in Our Redeemer Lutheran
School in the City of Madison, filed a petition for original action
in this court challenging the lawfulness of the Order. James
enrolled her children in Our Redeemer Lutheran School because of
her sincerely-held religious belief that it is essential for her
children to receive a faith-based education. Our Redeemer Lutheran
was one of the schools the Order required to cease in-person
instruction. James believes that it is critical for her children's
education to take place "in-person" and "together with others as
part of the body of Christ."
¶11 Other petitions for original action soon followed.
Wisconsin Council of Religious and Independent Schools (WCRIS), a
membership-based association of religious and independent
8
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA
schools,7 filed a petition for original action with this court
challenging the lawfulness of the Order. WCRIS represents over
600 schools throughout Wisconsin, including 23 schools in Dane
County serving approximately 4,600 students in grades K-12. Like
James, parents associated with WCRIS hold sincerely-held beliefs
that in-person religious education is vital to their children's
religious formation.
¶12 Additionally, St. Ambrose Academy, a classical Catholic
school located in the City of Madison, together with parents of
children attending St. Ambrose,8 brought a petition for original
action to this court challenging the lawfulness of the Order.
According to St. Ambrose, its "religious mission depends on in-
person attendance to be fully realized." St. Ambrose offers its
students the opportunity to receive Holy Communion at weekly
Masses, frequent confessions before a Catholic priest, Adoration
of the Eucharist, communal prayer throughout the day, and
opportunities to go on retreats and service missions throughout
the local area. The Order prohibited these in-person activities.
¶13 All three petitions for original action raised the same
two claims: (1) the Order exceeded Heinrich's statutory authority
under Wis. Stat. § 252.03, and (2) the Order violated the
7WRCIS's petition for original action was joined by a group
of parents of students attending Dane County schools, as well as
several other membership associations and individual schools
themselves.
8Other religious schools and parents of children attending
these schools joined St. Ambrose's petition for original action.
9
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA
Petitioners' fundamental right to the free exercise of religion
under Article I, Section 18 of the Wisconsin Constitution.9 The
Petitioners also requested temporary injunctive relief. Heinrich
filed a response opposing the petitions for original action.
¶14 On September 10, 2020, this court granted the three
petitions for original action and consolidated them for purposes
of briefing and oral argument. At the same time, this court
enjoined those provisions of the Order "which purport to prohibit
schools throughout Dane County from providing in-person
instruction to students," thereby allowing schools to re-open for
in-person instruction. In issuing the injunction, this court
determined that Petitioners: (1) had a reasonable probability of
success on the merits, (2) lacked an adequate remedy at law, and
(3) would suffer irreparable harm in the absence of an injunction.
Recognizing that "[o]verriding the choices of parents and schools,
who also undoubtedly care about the health and safety of their
teachers and families, intrudes upon the freedoms ordinarily
retained by the people under our constitutional design," we
9 The Petitioners also contend that the Order violates
Petitioners' fundamental right to direct the education and
upbringing of their children under Article I, Section 1 of the
Wisconsin Constitution. The Petitioners' principal constitutional
claim, however, focused on the free exercise of religion and was
more substantively developed than Petitioners' parental rights
argument. Because we resolve the constitutional challenge under
the free exercise of religion provision, we decline to address the
Petitioners' additional constitutional argument.
10
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA
concluded that a balancing of equities favored issuing the
injunction. On December 8, 2020, we heard oral argument.10
II. STANDARD OF REVIEW
¶15 We review this case under our original jurisdiction
conferred in Article VII, Section 3(2) of the Wisconsin
Constitution. The Petitioners ask this court to interpret Wis.
Stat. § 252.03 in determining whether Heinrich violated her
10 After oral argument, Heinrich issued another emergency
order, which does not mandate school closures; Heinrich asserts
her subsequent order renders this case moot. Even if Heinrich's
latest order moots this original action, many of the recognized
exceptions to the mootness doctrine apply. "[E]xceptions to
dismissal for mootness include situations involving: (1) issues
of great public importance; (2) the constitutionality of a statute;
(3) issues that arise so often a definitive decision is essential
to guide the trial courts; (4) issues likely to arise again and
that should be resolved by the court to avoid uncertainty; or (5)
issues . . . capable and likely of repetition and yet evade
review[.]" Portage Cnty. v. J.W.K., 2019 WI 54, ¶29, 386
Wis. 2d 672, 927 N.W.2d 509 (quoted source omitted). Given the
ever-evolving orders from PHMDC, the issues presented are
undoubtedly capable and likely of repetition but would evade review
if every time a lawsuit challenging PHMDC's orders is filed, the
health authority issues a modified order. Additionally, the
statutory and constitutional issues in this case plainly present
matters of great public importance. Accordingly, we address the
merits of this dispute. See Roman Catholic Diocese of Brooklyn v.
Cuomo, 141 S. Ct. 63, 72 (2020) (Gorsuch, J., concurring) ("[J]ust
as this Court was preparing to act . . . the Governor loosened his
restrictions, all while continuing to assert the power to tighten
them again anytime as conditions warrant. So if we dismissed this
case, nothing would prevent the Governor from reinstating the
challenged restrictions tomorrow. And by the time a new challenge
might work its way to us, he could just change them again. The
Governor has fought this case at every step of the way. To turn
away religious leaders bringing meritorious claims just because
the Governor decided to hit the 'off' switch in the shadow of our
review would be, in my view, just another sacrifice of fundamental
rights in the name of judicial modesty.").
11
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA
statutory authority. Issues of statutory interpretation and
application present questions of law. Police Ass'n v. City of
Milwaukee, 2018 WI 86, ¶17, 383 Wis. 2d 247, 914 N.W.2d 597. The
Petitioners also ask this court to interpret Article I, Section 18
of the Wisconsin Constitution. Issues of constitutional
interpretation also are questions of law. Serv. Emps. Int'l Union,
Loc. 1 v. Vos, 2020 WI 67, ¶28, 393 Wis. 2d 38, 946 N.W.2d 35.
III. DISCUSSION
A. Statutory Powers Under Wis. Stat. § 252.03¶16 The Petitioners argue that Heinrich lacks authority
under Wis. Stat. § 252.03 to close schools. Heinrich responds
that both Wis. Stat. § 252.03(1) and (2) authorize local health
officers to issue school-closure orders. The Petitioners are
correct. Section 252.03 does not provide local health officials
with any authority to close schools; accordingly, Heinrich's Order
is statutorily unlawful.11
¶17 Wisconsin Stat. § 252.03 delineates the powers of local
health officers regarding communicable diseases. Subsections (1)
and (2) of the statute provide:
(1) Every local health officer, upon the appearance of
any communicable disease in his or her territory,
shall immediately investigate all the circumstances
and make a full report to the appropriate governing
body and also to the department. The local health
officer shall promptly take all measures necessary
to prevent, suppress and control communicable
11Both parties stipulated to the fact that the Order "closes
schools," despite the availability of virtual learning options for
students. Accordingly, we do not further address whether the Order
constitutes a "school-closure order."
12
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA
diseases, and shall report to the appropriate
governing body the progress of the communicable
diseases and the measures used against them, as
needed to keep the appropriate governing body fully
informed, or at such intervals as the secretary may
direct. The local health officer may inspect
schools and other public buildings within his or
her jurisdiction as needed to determine whether the
buildings are kept in a sanitary condition.
(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.
¶18 Nowhere in this statute did the legislature give local
health officers the power to "close schools." The statute lists
a series of discrete powers afforded local health officers in order
to address communicable diseases. Local health officers may, for
example, "forbid gatherings when deemed necessary to control
outbreaks or epidemics," and "inspect schools and other public
buildings . . . as needed to determine whether the buildings are
kept in a sanity condition." Wis. Stat. § 252.03(1) and (2).
Under the doctrine of expressio unius est exclusio alterius, the
"express mention of one matter excludes other similar matters [that
are] not mentioned." FAS, LLC v. Town of Bass Lake, 2007 WI 73,
¶27, 301 Wis. 2d 321, 733 N.W.2d 287 (quoting Perra v. Menomonee
Mut. Ins. Co., 2000 WI App 215, ¶12, 239 Wis.2d 26, 619
N.W.2d 123); see also State v. Delaney, 2003 WI 9, ¶22, 259
Wis. 2d 77, 658 N.W.2d 416; Antonin Scalia & Bryan A. Garner,
Reading Law: The Interpretation of Legal Texts 107-11 (2012) ("The
expression of one thing implies the exclusion of others (expressio
unius est exclusio alterius)."). Pursuant to this doctrine, if
13
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA
"the legislature did not specifically confer a power," the exercise
of that power is not authorized. State ex rel. Harris v. Larson,
64 Wis. 2d 521, 527, 219 N.W.2d 335 (1974). Because the
legislature expressly granted local health officers discrete
powers under Wis. Stat. § 252.03 but omitted the power to close
schools, local health officers do not possess that power. See
Jefferson v. Dane Cnty., 2020 WI 90, ¶29, 394 Wis. 2d 602, 951
N.W.2d 556.
¶19 Heinrich's contrary interpretation of Wis. Stat.
§ 252.03 makes little sense when read in conjunction with Wis.
Stat. § 252.02, a closely-related statute governing the powers of
DHS regarding communicable diseases. In § 252.02, the legislature
specifically stated that "[t]he department [of health services]
may close schools and forbid public gatherings in schools,
churches, and other places to control outbreaks and epidemics."
§ 252.02(3) (emphasis added). The presence of this specific text
in § 252.02 in the face of its conspicuous absence from § 252.03
shows that the legislature withheld that authority from local
health officers. Given that § 252.02 and § 252.03 mirror each
other in other substantive respects, this stark difference
supports our textual analysis. Under the related-statutes canon
of statutory construction, statutes in the same chapter
"contain[ing] the same subject matter . . . must be considered in
pari materia and construed together." State v. Wachsmuth, 73
Wis. 2d 318, 325, 243 N.W.2d 410 (1976); see also State v. Jensen,
2000 WI 84, ¶20, 236 Wis. 2d 521, 613 N.W.2d 170; R.W.S. v. State,
162 Wis. 2d 862, 871, 471 N.W.2d 16 (1991). "Several acts in pari
14
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA
materia, and relating to the same subject, are to be taken
together, and compared in the construction of them, because they
are considered as having one object in view, and as acting upon
one system." Scalia & Garner, supra, at 252 (quoting 1 James Kent,
Commentaries on American Law 433 (1826)).
¶20 Comparing the construction of these two statutes,
located in the same chapter and covering the same subject matter,
confirms that the legislature withheld this authority from local
health officers. See State ex rel. Kalal v. Cir. Ct. for Dane
Cnty., 2004 WI 58, ¶46, 271 Wis. 2d 633, 681 N.W.2d 110("[S]tatutory language is interpreted in the context in which it
is used; not in isolation but as part of a whole; in relation to
the language of surrounding or closely-related statutes."). As we
explained when we granted temporary injunctive relief, this
conclusion is bolstered by the fact that "[b]oth Wis. Stat.
§ 252.02 and Wis. Stat. § 252.03 were drafted at the same time and
by the same legislature, so no historical quirk or later
amendment . . . would suggest anything other than the legislature
granted DHS and local health officers different powers."
¶21 Despite the absence of any express grant of authority
allowing local health officers to close schools, Heinrich argues
that her general authority to take measures "reasonable and
necessary" for the prevention and suppression of disease allows
her to close schools. See Wis. Stat. § 252.03(2). She is
incorrect. If local health officers' authority to take measures
"reasonable and necessary" included the extraordinary power to
close schools, then the legislature's specification of particular
15
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA
powers, such as the power to "inspect schools," would be
superfluous. The power to take measures "reasonable and necessary"
cannot be reasonably read as an open-ended grant of authority.
Doing so would swallow the rest of the statute and render it mere
surplusage. "Statutory language is read where possible to give
reasonable effect to every word, in order to avoid surplusage."
Kalal, 271 Wis. 2d 633, ¶46; see also Scalia & Garner, supra, at
174.
¶22 Furthermore, Heinrich's interpretation of local health
officers' "reasonable and necessary" powers violates the
fundamental principle that specific statutory language controls
over more general language. See In re Paternity of Palmersheim,
2004 WI App 126, ¶27, 275 Wis. 2d 311, 685 N.W.2d 546; Apple Valley
Gardens Ass'n, Inc. v. MacHutta, 2007 WI App 270, ¶16, 306
Wis. 2d 780, 743 N.W.2d 48. If Heinrich's argument were correct,
then the general provision would essentially afford local health
officers any powers necessary to limit the spread of communicable
diseases. This cannot be. What is reasonable and necessary cannot
be reasonably read to encompass anything and everything. Nothing
in the text of the statute confers upon local health officers the
power to close schools. To conclude otherwise would be tantamount
to striking language from the statute so that it says only "[l]ocal
health officers may do what is reasonable and necessary for the
prevention and suppression of disease." Because we are a court
and not the legislature, it would exceed the constitutional
boundaries of our authority to rewrite the law in this manner.
16
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA
¶23 As recognized since the founding of our nation, "it is
no more the court's function to revise by subtraction than by
addition[.] As Chief Justice John Marshall explained: 'It would
be dangerous in the extreme, to infer from extrinsic circumstances,
that a case for which the words of an instrument expressly provide,
shall be exempted from its operation.' Or in the words of Thomas
M. Cooley: '[T]he courts must . . . lean in favor of a
construction which will render every word operative, rather than
one which may make some idle and nugatory.'" Scalia & Garner,
supra, at 174 (quoting Sturges v. Crowninshield, 17 U.S. (4 Wheat.)
122, 202 (1819) (per Marshall, C.J.) and Thomas M. Cooley, A
Treatise on the Constitutional Limitations Which Rest upon the
Legislative Power of the States of the American Union 58 (1868)).
Adopting Heinrich's statutory analysis (as the dissent does) would
render the rest of Wis. Stat. § 252.03 entirely redundant. If
"[l]ocal health officers may do what is reasonable and necessary
for the prevention and suppression of disease" then the legislature
quite unnecessarily wrote that "[t]he local health officer may
inspect schools and other public buildings within his or her
jurisdiction as needed to determine whether the buildings are kept
in a sanitary condition." § 252.03(1). Under Heinrich's (and the
dissent's) statutory construction, the legislature also needlessly
wrote that local health officers "may forbid public gatherings
when deemed necessary to control outbreaks or epidemics."
§ 252.03(2). Heinrich's (and the dissent's) interpretation of
§ 252.03 violates the "cardinal rule of statutory interpretation
that no provision should be construed to be entirely redundant."
17
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA
Kungys v. United States, 485 U.S. 759, 778 (1988) (citations
omitted).12
12 Justice Rebecca Dallet would apparently jettison the canons
of statutory construction that have guided judicial interpretation
for centuries. While the canons represent "a generally agreed-on
approach to the interpretation of legal texts" judges who reject
this textually-grounded method of decision making "refuse to yield
the ancient judicial prerogative of making the law, improvising on
the text to produce what they deem socially desirable results[.]"
Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation
of Legal Texts xxvii, 4 (2012). Justice Dallet disparages these
canons because they interfere with her desired results. In her
dissent to the court's order granting injunctive relief, Justice
Dallet criticized the court (and the petitioners) for "fail[ing]
to understand that we are all in this together; voluntarily sending
children to school may put others in the community at risk."
Contrary to Justice Dallet's policy-focused approach, the canons
serve as "helpful, neutral guides" and are "grounded in experience
developed by reason and tend to a better administration of justice
than leaving interpretation in each case to feelings of policy on
the part of the tribunal." Scalia & Garner, supra, at 61 (quoting
3 Roscoe Pound, Jurisprudence 506 (1959)).
18
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA
Justice Antonin Scalia and Bryan Garner, co-authors of the
"first modern attempt . . . to collect and arrange only the valid
canons and to show how and why they apply to proper legal
interpretation," Scalia & Garner, supra, at 9, included in their
treatise only those venerable canons representing "what the best
legal thinkers have said for centuries." Id. at xxix. Justice
Dallet dismisses their work as just one "toolbox" that is "not the
law" but merely an "extrinsic source" (while citing a plethora of
secondary sources herself) and ignores the fact that every canon
on which the court relies in this opinion has been previously
adopted and applied not only by this court, but both federal and
state courts——for centuries. Dissent, ¶76. Rejecting
longstanding precedent, Justice Dallet would cabin the use of
canons solely for "clearing up confusing or ambiguous text." Id.,
¶77. Fundamentally, Justice Dallet misunderstands how to
interpret legal texts. "[N]either written words nor the sounds
that the written words represent have any inherent meaning.
Nothing but conventions and contexts cause a symbol or sound to
convey a particular idea." Scalia & Garner, supra, at xxvii. The
canons represent "a generally agreed-on approach to the
interpretation of legal texts." Id. Justice Dallet's
marginalization of their role flies in the face of centuries of
jurisprudence and her proffered method of statutory interpretation
falls on the fringes of acceptable approaches, far outside of the
judicial mainstream. "[L]egislators enact; judges interpret" and
the canons simply "explain how [judges] should perform this task."
Id. at xxx.
19
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA
Justice Dallet distorts the words of textualists to support
her rejection of the fair reading method of statutory
interpretation; neither Justice Samuel Alito nor Justice Brett
Kavanaugh condemned the entire corpus of canons as Justice Dallet
insinuates. Justice Alito did not deride the use of canons of
statutory construction, only the Court's abuse of them to defeat
"the sense of the matter." Facebook, Inc. v. Duguid, 141 S. Ct.
1163, 1174 (2021) (Alito, J., concurring). Nor did Justice
Kavanaugh characterize "Scalia and Garner's brand of textualism"
as being "just as subjective as any other" approach. Dissent,
¶79. Justice Kavanaugh never said "fancy-sounding
canons . . . warrant little weight in modern statutory
interpretation," id.; rather, he targeted his criticisms toward
particular canons: "I would consider tossing the ejusdem generis
canon into the pile of fancy-sounding canons that warrant little
weight in modern statutory interpretation." Brett M. Kavanaugh,
Fixing Statutory Interpretation, 129 Harv. L. Rev. 2118, 2161
(2016) (book review). He also never said the canons "often lead
to 'wrongheaded' judicial 'policymaking,'" dissent, ¶79; rather,
Justice Kavanaugh characterized only "[t]he anti-redundancy canon"
which "tells us to bend the statute to avoid redundancies" as
"little more than policymaking and, in my view, often quite
wrongheaded." Kavanaugh, supra, at 2162.
Citing Justice Scalia extensively (and only favorably),
Justice Kavanaugh heartily endorsed the widely accepted canons of
construction:
To assist the interpretive process, judges over time
have devised many semantic and substantive canons of
construction — what we might refer to collectively as
the interpretive rules of the road. To make judges more
neutral and impartial in statutory interpretation cases,
we should carefully examine the interpretive rules of
the road and try to settle as many of them in advance as
we can.
Id. at 2121. Acknowledging that "statutory interpretation has
improved dramatically over the last generation, thanks to the
extraordinary influence of Justice Scalia," Justice Kavanaugh
proposed that "courts should seek the best reading of the statute
by interpreting the words of the statute, taking account of the
context of the whole statute, and applying the agreed-upon semantic
canons." Id. at 2118, 2121. Justice Dallet ignores not only the
20
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA
¶24 Perhaps recognizing the textual shortcomings of her
argument, Heinrich points to other statutes that make reference to
local health officers closing schools, arguing that these statutes
support a local health officer's power to close schools under Wis.
Stat. § 252.03. In particular, Heinrich mentions Wis. Stat.
§ 115.01(10)(b), which says that "school days" are "days on which
school is actually taught and the following days on which is not
taught: . . . [d]ays on which school is closed by order of a local
health officer." Heinrich's reliance on this statute is misplaced.
A plain textual reading of § 115.01(10)(b) shows that the provision
is not a grant of authority to local health officers; instead, it
is merely a "classifications" section for statutes wholly
unrelated to the duties of local health officers regarding
communicable diseases. Accordingly, this statute has no bearing
on the authority of state actors in this case.
¶25 Heinrich further argues that Wis. Stat. § 120.12(27)(a)
contemplates that local health officers have the power to close
schools under Wis. Stat. § 252.03. Section 120.12(27)(a) states
that "[the school board shall] [w]ithin 24 hours of a school being
closed for a reason specified in § 115.01(10)(b) or (c) or by the
department of health services under § 252.02(3), notify the
department." Nothing in this provision gives local health officers
any authority to close schools. Rather, the statute contemplates
that DHS has the power to close schools under ch. 252. Section
canons but the text, context, and structure of Wis. Stat. § 252.03to reach her desired outcome in this case.
21
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA
120.12(27)(a) is silent concerning local health officers.
Instead, Wis. Stat. § 120.12 pertains to the duties of local school
boards. When interpreting the "duties of local health officers"
during the presence of "communicable diseases," this court must
turn to the plain text of the statute that governs these duties:
§ 252.03.13 That statute withholds the power to close schools from
local health officers.14
B. Legislative and Statutory History of Wis. Stat. § 252.03¶26 The plain text of Wis. Stat. § 252.03 confers no
authority on local health officers to close schools; accordingly,
13Adopting Heinrich's arguments, Justice Dallet cites
statutory provisions referencing school closures by local health
officers as proof of their authority under Wis. Stat. § 252.03 to
close schools. This is a plain logical fallacy. Like § 252.03,
none of these other statutes confer such authority on local health
officers. Statutory references to a school closure by a local
health officer may stem from Wis. Stat. § 250.042(1), which says:
"If the governor declares a state of emergency related to public
health under s. 323.10 and designates the department [of health
services] as the lead state agency to respond to that emergency,
the department shall act as the public health authority during the
state of emergency . . . . During the period of the state of
emergency, the secretary may designate a local health department
as an agent of the department and confer upon the local health
department, acting under that agency, the powers and duties of the
public health authority." That statutory provision is not
challenged in this case so we do not construe it or consider its
validity under the constitution; nevertheless, on its face it
explains the existence of statutory references to school closures
by order of local health officers although no statute confers such
authority.
14Heinrich points to a few additional statutes from unrelated
chapters to support her conclusion that local health officers have
the power to close schools under Wis. Stat. § 252.03. Heinrich
fails to flesh out these other provisions in any substantive way;
accordingly, we decline to discuss them.
22
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA
our analysis of the statute could end there. Kalal, 271
Wis. 2d 633, ¶45 ("[S]tatutory interpretation 'begins with the
language of the statute. If the meaning of the statute is plain,
we ordinarily stop the inquiry.'"). However, "legislative history
is sometimes consulted to confirm or verify a plain-meaning
interpretation." Id., ¶51. Similarly, "statutory history" may
also be used as part of "plain meaning analysis." See Richards
v. Badger Mut. Ins. Co., 2008 WI 52, ¶22, 309 Wis. 2d 541, 749
N.W.2d 581. In this case, both the legislative and statutory
history confirm that local health officers do not have the power
to close schools. Although the legislature at one point
contemplated giving them this power, it never did so.
¶27 Wisconsin's public health infrastructure originated 145
years ago in 1876, when the legislature created the State Board of
Health, which, like DHS today, served as the statewide public
health agency. Steven Burg, Wisconsin and the Great Spanish Flu
Epidemic of 1918, Wisconsin Magazine of History, Autumn 2000,
at 44.15 At that time, the legislature gave the State Board of
Health the power to issue statewide health orders in times of
crisis. Id. In 1883, the legislature required every town,
village, and city in the state to establish a local board of health
and appoint a local health officer. Id. In delineating the duties
of local health officers, the legislature mandated that local
This
15 article is available at
https://content.wisconsinhistory.org/digital/collection/wmh/id/4
3606.
23
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA
health officers "take such measures for the prevention,
suppression, and control of the diseases."16 § 1, ch. 167, Laws
of 1883. Nowhere in this law (or in any other) did the legislature
give local health officers the power to close schools.
¶28 Thirty years later, in 1913, the legislature enacted a
law giving the State Board of Heath the power to close schools
during an epidemic. In contrast, the legislature declined to grant
such authority to local health officers. As relevant to this case,
the statute conferred four powers on the State Board of Health:
1. The power "to establish quarantine . . . ";
2. The power "to order and execute what is reasonable and
necessary for the prevention and suppression of diseases";
3. The power "to close schools and churches"; and
4. The power "to forbid public gatherings."
§ 1, ch. 674, Laws of 1913 (emphasis added). Only five years
later, when the Spanish Flu infected Wisconsinites, the State Board
of Health invoked these extraordinary powers. Burg, supra, at 45.
¶29 In the aftermath of the Spanish Flu, the legislature
revisited Wisconsin's public heath laws. In May 1919, the
16 In more detail, the 1883 law read: "[I]t shall be the duty
of such health officer at all times promptly to take such measures
for the prevention, suppression and control of the diseases herein
named as may in his judgment be needful and proper, subject to the
approval of the board of which he is a member . . . ." § 1,
ch. 167, Laws of 1883.
24
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA
legislature expanded the powers of local health officers to include
the following:
1. The power "to establish quarantine . . . ";
2. The power "to order and execute what is reasonable and
necessary for the prevention and suppression of disease";17
and
3. The power "to forbid public gatherings."
§ 1, ch. 159, Laws of 1919. This language mirrors the powers
accorded the State Board of Health—with one notable exception:
the power to close schools. Compare § 1, ch. 674, Laws of 1913
with § 1, ch. 159, Laws of 1919.
¶30 This legislative choice was no accident. Early drafts
of the bill reveal that the legislature at one point contemplated
giving local health officers the power to close schools. At the
time the legislature asked the Attorney General to opine on its
constitutionality, an earlier version stated that "the local board
of health of each township, incorporated village or city, shall
have the power to close schools, theatres, and churches" for the
prevention and suppression of disease. 8 Wis. Op. Att'y Gen. 157,
157-58 (1919) (emphasis added). The Attorney General responded
that the provision in the bill "'clos[ing] schools, theatres, and
churches' seems to be without limitation." Id. Expressing concern
over the language's constitutionality, the Attorney General
recommended that the language "should . . . more clearly state[]"
The legislature first gave this power to local health
17
officers under its 1883 law.
25
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA
that the "[the provision closing schools] is intended to limit
this [authority] to the necessity of controlling epidemics." Id.
After receiving the Attorney General's opinion, the legislature
struck the provision concerning school closures. Gone was any
language allowing local health officers to "close schools" during
an epidemic——or otherwise. Ultimately, the legislature enacted
this bill without any mention of school closures. See § 1,
ch. 159, Laws of 1919.
¶31 The 1919 law established the foundation for Wisconsin's
current statute concerning local health officers, with periodic
amendments over the ensuing decades. In 1923, the legislature
restructured its public health laws, retaining the same language
adopted in 1919. See Wis. Stat. §§ 143.02 and 143.03 (1923-24).
In 1981, the legislature again amended these laws, with only minor
additions. See 1981 Wis. Act 291, §§ 21, 23. In all this time,
the legislature never gave local health officers the power to
"close schools"—only the statewide health agency (now DHS). Both
the plain text of Wis. Stat. § 252.03 as well as its legislative
and statutory history lead to only one reasonable conclusion:
Heinrich exceeded her statutory authority under Wis. Stat.
§ 252.03 when she issued the Order closing all schools in Dane
County.
26
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA
C. Constitutional Claims18
18 In espousing the doctrine of constitutional avoidance as a
compulsory rule, Justice Dallet proclaims that "we generally reach
constitutional claims only if the case is 'incapable of resolution
without deciding the constitutional conflict,'" misciting Gabler
v. Crime Victims Rights Bd., 2017 WI 67, ¶¶51-52, 376 Wis. 2d 147,
897 N.W.2d 384. Dissent, ¶85. Gabler actually said: "This case
is incapable of resolution without deciding the constitutional
conflict presented by the Board's exercise of its statutory
powers." Gabler, 376 Wis. 2d 147, ¶51. Although "[t]his court
does not normally decide constitutional questions if the case can
be resolved on other grounds" such "[c]onstitutional avoidance is
'a matter of judicial prudence' and does not apply where the
constitutionality of a statute is 'essential to the determination
of the case.'" Id., ¶52 (quoting Kollasch v. Adamany, 104
Wis. 2d 552, 561, 313 N.W.2d 47 (1981); then citing Fleeman v.
Case, 342 So.2d 815, 818 (Fla. 1976) and Hammond v. Bingham, 362
P.2d 1078, 1079 (Idaho 1961)). This exception to the
constitutional avoidance doctrine applies no less to governmental
edicts such as the Order we consider in this case. Like other
state and federal courts around the country, we have elected to
answer constitutional questions of great public importance.
"Courts in other jurisdictions have also recognized that the
principle of constitutional avoidance gives way where the
constitutional question is of great public importance." Id.(citing State ex rel. Bland v. St. John, 13 So. 2d 161, 170 (Ala.
1943) and Buckingham v. State ex rel. Killoran, 35 A.2d 903, 904-
05 (Del. 1944)). In Gabler, we elected to decide "a separation of
powers issue of great public importance." Id., ¶53. In this case,
we opt to decide a religious liberty issue of great public
importance. In doing so, we recognize, as we did in Gabler, that
"the greatest of our judges have not always followed [the
constitutional avoidance doctrine] as a rigid rule. Perhaps had
they done so the great opinion of Chief Justice Marshall in Marbury
v. Madison would never have been written." Id., ¶52 (quoting Clay
v. Sun Ins. Office Ltd., 363 U.S. 207, 223-24 (1960) (Black, J.,
dissenting)).
Treating the constitutional avoidance doctrine as a rigid
principle directing courts to disregard any constitutional
questions whenever a case may be resolved on statutory grounds is
not only inconsistent with our precedent, it would violate the
judiciary's obligation to uphold the constitution. As part of
their oath of office, judges in Wisconsin "solemnly swear" to
27
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA
"support the constitution of the United States and the constitution
of the state of Wisconsin." Wis. Stat. § 757.02(1). In fulfilling
its sworn duty, "[t]he judiciary cannot, as the legislature may,
avoid a measure because it approaches the confines of the
constitution. We cannot pass it by because it is
doubtful . . . with whatever difficulties, a case may be attended,
we must decide it, if it be brought before us." Cohens v. Virginia,
19 U.S. 264, 404 (1821). When parties present constitutional
questions of great public importance, "[t]he courts of the [United]
States are bound to take notice of the constitution," and to
"emphatically . . . say what the law is." Marbury v. Madison, 5
U.S. (1 Cranch) 137, 138, 177 (1803).
Contrary to Justice Hagedorn's conception of the judicial
role, there is nothing unprecedented about fulfilling our
responsibility to decide important constitutional questions, which
was recently affirmed by this court in Gabler and has been echoed
by preeminent jurists since Chief Justice John Marshall pronounced
it in Marbury. Alexander Hamilton said the "duty" of the judiciary
"must be to declare all acts contrary to the manifest tenor of the
Constitution void. Without this, all the reservations of
particular rights or privileges would amount to nothing." The
Federalist No. 78, at 466 (Alexander Hamilton) (C. Rossiter ed.
1961). Accordingly, "when a case or controversy comes within the
judicial competence, the Constitution does not permit judges to
look the other way; we must call foul when the constitutional lines
are crossed. Indeed, the framers afforded us independence from
the political branches in large part to encourage exactly this
kind of 'fortitude . . . to do [our] duty as faithful guardians of
the Constitution.'" Gundy v. United States, 139 S. Ct. 2116, 2135
(2019) (Gorsuch, J., dissenting) (quoting The Federalist No. 78,
at 470 (C. Rossiter ed. 1961) (ellipsis in original)).
Justice Hagedorn misconstrues the basis for this court's
decision to resolve petitioners' religious liberty claim. No one
is suggesting we must address every important constitutional
question raised. In this very case we declined to decide whether
the Order violates the constitutionally-protected right of parents
to direct the upbringing and education of their children.
28
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA
¶32 Turning to the Wisconsin Constitution, the Petitioners
contend that the Order violates their fundamental right to the
free exercise of religion under Article I, Section 18. In
response, Heinrich asserts that the Order is constitutional under
the United States Supreme Court's ruling in Jacobson v.
Our duty to uphold the Constitution, however, is particularly
urgent when governmental action is alleged to infringe the people's
fundamental right to religious freedom. "The courts have both the
title and duty when a case is properly before them to review the
actions of the other branches in light of constitutional
provisions[.]" Herbert Wechsler, Toward Neutral Principles of
Constitutional Law, 73 Harv. L. Rev. 1, 19 (1959). Declining to
decide the constitutional question in this case would "shirk[] our
duty" to say what the supreme law of our state is. Bond v. United
States, 572 U.S. 844, 882 (2014) (Scalia, J., concurring in the
judgment). Justice Hagedorn relegates what Alexander Hamilton and
Chief Justice Marshall characterized as our judicial "duty" to a
mere "power" to be exercised "with modesty." Concurrence, ¶58.
This reformulation of the judicial role is rooted in the
progressive era, when judges abandoned their obligation to uphold
the Constitution in extreme deference to majoritarian impulses,
thereby elevating legislative acts over the Constitution——at the
expense of individual rights and liberty. See Randy E. Barnett,
Our Republican Constitution: Securing the Liberty and Sovereignty
of We the People 122-53 (2016). Justice Hagedorn's trepidation
over fully embracing our "duty as faithful guardians of the
Constitution" is incompatible with our constitutional structure,
and his standard for answering constitutional questions based upon
an individual justice's belief that "it is prudent to do so" would
leave the people with justifiably little faith in the judiciary as
a bulwark of liberty. See The Federalist No. 78, at 469 (C.
Rossiter ed. 1961) ("[T]he courts of justice are to be considered
as the bulwarks of a limited Constitution against legislative
encroachments[.]"). Preserving the free exercise rights
constitutionally retained by the people lies well within the bounds
of the judicial role and is not "needlessly opin[ing]"——it is a
constitutional imperative. Dissent, ¶64. As the bulwark of our
Wisconsin Constitution, we should defend the people's rights with
fortitude, not modesty.
29
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA
Massachusetts, 197 U.S. 11 (1905), and that, even if Jacobson does
not apply, the Order does not violate Article I, Section 18 of the
Wisconsin Constitution. We hold that the Wisconsin Constitution—
—not Jacobson——controls the question, and those portions of the
Order restricting or prohibiting in-person instruction are
unconstitutional because they violate a citizen's right to the
free exercise of religion guaranteed in Article I, Section 18 of
the Wisconsin Constitution.19
1. Jacobson v. Massachusetts
¶33 The United States Supreme Court decided Jacobson over a
century ago in the midst of the smallpox epidemic. Jacobson
alleged that a Massachusetts law requiring residents to receive
vaccinations violated his rights under the Fourteenth Amendment of
the United States Constitution. Jacobson, 197 U.S. at 14. In
essence, Jacobson brought an "implied substantive due process"
claim asserting that the law violated his "bodily integrity." See
Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 70
(2020) (Gorsuch, J., concurring). The Court ruled that
Massachusetts's compulsory vaccination law was a "reasonable
19 The Petitioners who are religious schools or parents with
children attending religious schools raise an as-applied challenge
to the constitutionality of those portions of the Order restricting
or prohibiting in-person instruction. The remedy for violating
the constitutional right to the free exercise of religion is
vacating those portions of the Order as applied to those
Petitioners. Because the Respondent lacks any statutory authority
to close schools (whether religious or secular), we vacate those
portions of the Order entirely.
30
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA
exercise of [its] police power" and was constitutional under the
Fourteenth Amendment. Jacobson, 197 U.S. at 35.
¶34 Contrary to Heinrich's argument, Jacobson does not apply
to this case, for at least four reasons. First, the Petitioners'
challenge to the constitutionality of the Order is couched entirely
within Article I, Section 18 of the Wisconsin Constitution——a
provision containing Wisconsin's free exercise clause.20 In
contrast, in Jacobson the defendant asserted that the compulsory
vaccination law violated an implied "substantive due process"
right to "bodily integrity" in violation of the Fourteenth
Amendment. See Roman Catholic Diocese, 141 S. Ct. at 70 (Gorsuch,
J., concurring); Jacobson, 197 U.S. at 14. The issue in Jacobson
involved "an entirely different right" and "an entirely different
kind of restriction" than the Petitioners' current challenge.
Roman Catholic Diocese, 141 S. Ct. at 70 (Gorsuch, J., concurring).
¶35 Second, Jacobson's case did not involve a violation of
the free exercise of religion under the First Amendment or any
state constitution. In contrast, the Petitioners in this case
challenge the government's infringement of their constitutionally-
protected right to the free exercise of their religion. "Nothing
in Jacobson purported to address, let alone approve, such serious
and long-lasting intrusions into settled constitutional rights."
Id. at 71 (Gorsuch, J., concurring).
20Article I, Section 18 contains two clauses referring to the
rights of conscience, but we understand both of these provisions
to protect the free exercise of religion. Coulee Catholic Sch. v.
LIRC, 2009 WI 88, ¶58, 320 Wis. 2d 275, 768 N.W.2d 868.
31
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA
¶36 Third, even if Jacobson could somehow inform a free
exercise claim, the Petitioners' challenge in this case invokes a
state constitutional provision that affords heightened protections
for the free exercise of religion compared to its federal
counterpart. See State ex rel. Warren v. Reuter, 44 Wis. 2d 201,
227, 170 N.W.2d 790 (1969). Article I, Section 18's "protections
and prohibitions . . . are far more specific [than the First
Amendment]" and provide "expansive protections for religious
liberty." Coulee Catholic Sch. v. LIRC, 2009 WI 88, ¶60, 320
Wis. 2d 275, 768 N.W.2d 868. Indeed, the Wisconsin Constitution
"provides much broader protections for religious liberty than the
First Amendment." Id., ¶66. Accordingly, this court must review
whether Heinrich's Order survives strict scrutiny under
Wisconsin's own constitutional provisions, not whether the United
States Constitution allows it; Jacobson would inform only the
latter and therefore is irrelevant.
¶37 Fourth, the Jacobson Court upheld Massachusetts'
compulsory vaccination law because it was "a reasonable exercise
of [its] police power." Jacobson, 197 U.S. at 35. However, "in
this state, constitutional rights do not expand the police power;
they restrict the police power." State v. Hamdan, 2003 WI 113,
¶39, 264 Wis. 2d 433, 665 N.W.2d 785. That an order reflects an
exercise of police power does not save it if the order "eviscerates
[a] constitutionally protected right." Id., ¶40. Indeed, police
powers are "hedged about on all sides by constitutional restraints
with the judiciary to stand guard at the boundaries." State ex
rel. Milwaukee Med. Coll. v. Chittenden, 127 Wis. 468, 502, 107
32
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA
N.W. 500 (1906). Our constitutional review of measures adopted by
state or local health officers to curb the spread of disease is
particularly important because such police powers necessarily
curtail the freedom of those citizens who are subject to their
exercise.21 In this case, we examine Article I, Section 18 of the
Wisconsin Constitution to stand guard against abuses of executive
21Justice Dallet reads into the statutes the extraordinary
and virtually unlimited power of local health officials to "take
all measures necessary" in a pandemic, without considering any
constitutional constraints on its exercise. Justice Dallet's
failure to grapple with the incompatibility of her statutory
interpretation with the Wisconsin Constitution violates the
foundational principle that the constitution reigns supreme over
statutory law: "[T]he Constitution is to be considered in court
as a paramount law" and "a law repugnant to the Constitution is
void, and . . . courts, as well as other departments, are bound by
that instrument." Marbury, 5 U.S. at 178, 180.
Instead of undertaking a constitutional analysis, Justice
Dallet remarkably blames the petitioners themselves for the
infringement of their own constitutional rights. Taking a position
diametrically opposed to Heinrich's and belied by the record,
Justice Dallet says that "[i]f in-person education on every
subject, religious or not, is truly religious practice, as some
petitioners here claim, nothing in the Order burdens that practice"
since "Section 8 of the Order explicitly exempts religious
practices from its in-person gathering restrictions[.]" Dissent,
¶88. The parties' stipulated facts "torpedo" Justice Dallet's
assertion. The parties——including Heinrich——stipulated that
"Emergency Order #9, itself, does not allow for the opening of in-
person education for grades 3-12 under any conditions except for
a new order superseding and replacing Emergency Order #9, and
except for qualifying students with disabilities or an
individualized education program." Joint Stipulation of Facts
#147 (emphasis added). Had the petitioner schools tested Justice
Dallet's theory, they would have exposed themselves to "a penalty
of not more than one thousand dollars $1,000" for "[e]ach and every
day of violation." Joint Stipulation of Facts #170.
33
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA
power——however well-intentioned——that infringe on the free
exercise of religion.
2. Article I, Section 18 of the Wisconsin Constitution
¶38 The framers of the Wisconsin Constitution understood
that "religious freedom was in need of . . . protection," in order
for individuals to freely exercise their religion. Jennifer A.
Faulker, The Transformation of Religion in America and the
Preservation of the Freedom of Religion in Wisconsin, in Defining
a People, Creating a State: The Wisconsin Constitution in
Jacksonian Context 201, 202 (1998). "The framers of the
constitution, backed by Wisconsin residents, chose to describe the
religious freedoms that they should be entitled to in greater
detail than were given in the federal constitution." Id. at 223.
The result was Article I, Section 18, which "contains two clauses
referring to the rights of conscience . . . , which we understand
to refer generally to the exercise of religious freedom." Coulee,
320 Wis. 2d 275, ¶58. In these provisions, Wisconsin's framers
"use[d] the strongest possible language in the protection of this
right." Id., ¶59. The clauses read, in relevant part, as follows:
The right of every person to worship Almighty God
according to the dictates of conscience shall never be
infringed; . . . nor shall any control of, or
interference with, the rights of conscience be
permitted[.]
Wis. Const. art. I, § 18. In line with this "extremely strong
language," Coulee, 320 Wis. 2d 275, ¶60, this court construes
Article I, Section 18 as "more prohibitive than the First Amendment
34
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA
of the United States Constitution." King v. Vill. of Waunakee,
185 Wis. 2d 25, 59, 517 N.W.2d 671 (1994).
¶39 When examining a law alleged to violate an individual's
or organization's freedom of religious exercise, "we have
generally applied the compelling state interest/least restrictive
alternative test. Under this test, the [individual] or religious
organization has to prove (1) that it has a sincerely held
religious belief, and (2) that such belief is burdened by the
application of the . . . law at issue. Upon this showing the
burden shifts to the state to prove (3) that the law is based upon
a compelling state interest (4) that cannot be served by a less
restrictive alternative." Coulee, 320 Wis. 2d 275, ¶61 (citing
State v. Miller, 202 Wis. 2d 56, 66, 549 N.W.2d 235 (1996)).
Applying the strict scrutiny embodied in these four factors,
Heinrich's Order unconstitutionally infringes the Petitioners'
freedom of religious exercise.
¶40 For the first factor, all petitioners have sincerely-
held religious beliefs, to which the respondent expressly
stipulated. James, for example, believes that it is essential for
her children to receive a faith-based education and that such
education must take place "in-person" and "together with others as
part of the body of Christ." James sent her children to Our
Redeemer Lutheran School precisely to fulfill this religious
mission. Likewise, WCRIS and its member schools, along with other
petitioners joining WCRIS' action, declared that "in-person
religious instruction" is a "vital part of [the students']
religious formation." Parents of children attending these schools
35
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA
specifically chose these institutions so their children could
"participat[e] in [their] religious activities in-person" and
"exercise their faith."
¶41 The parents of students at St. Ambrose Academy hold
similar beliefs. They attest it was important for their children
to attend St. Ambrose, a Catholic institution, so that its teachers
could "closely mentor [their] students to foster a deep love of
Jesus Christ and [to] encourage them to imitate a life of virtue
and service to Christ and His Church." In order to practice their
faith, the parents embrace the importance of their children
receiving the sacrament of Holy Communion at weekly Masses and
engaging in communal prayer throughout the day. St. Ambrose
specifically states that its "religious mission depends on in-
person attendance to be fully realized," given that the "community
experience . . . is a mark of educational activity."22 The
Petitioners clearly demonstrate sincerely-held religious beliefs,
uncontested by Heinrich; accordingly, they satisfy the first
factor.
¶42 Turning to the second factor, the Order incontrovertibly
burdens Petitioners' beliefs. The Petitioners established that
in-person religious instruction is a vital part of the exercise of
their religion. Under Heinrich's Order, all schools in Dane
County——including these private religious institutions——were
required to cease all in-person instruction for students in grades
22The other religious schools joining St. Ambrose in this
action echo similar beliefs.
36
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA
3-12 and instead provide a virtual learning environment.
Consequently, all in-person religious practices interwoven with
religious education at these schools——ones deemed essential to the
Petitioners' exercise of their faith——were suspended by government
decree.
¶43 Indeed, the Order did not merely burden academic
schooling; it burdened the exercise of religious practices. While
Heinrich allowed schools to use their premises for child care and
youth recreational activities, the government barred students from
attending Mass, receiving Holy Communion at weekly Masses with
their classmates and teachers, receiving the sacrament of
Confession at school, participating in communal prayer with their
peers, and going on retreats and service missions throughout the
area.23 As the United States Supreme Court has opined, "the
'exercise of religion' often involves not only belief and
profession but the performance of . . . physical acts[,]
[including] assembling with others for a worship service." Emp.
Div., Dep't of Hum. Res. of Oregon v. Smith, 494 U.S. 872, 877
(1990) (emphases added). "Our Founders conceived of a Republic
receptive to voluntary religious expression, and provided for the
possibility of judicial intervention when government action
Contrary to Heinrich's argument, it is of no import that
23
the Order may be neutral and generally applicable to all schools.
Unlike federal jurisprudence and in light of Article I, Section
18's heightened protection for the free exercise of religion, this
court considers whether the petitioners' sincerely-held beliefs
were burdened by the application of the law at issue, even if the
Order governs secular schools as well. See DeBruin v. St. Patrick
Congregation, 2012 WI 94, ¶26 n.8, 343 Wis. 2d 83, 816 N.W.2d 878.
37
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA
threatens or impedes such expression." McCreary Cnty., Ky. v. Am.
Civ. Liberties Union of Ky., 545 U.S. 844, 883 (2005) (emphasis
added). Heinrich's Order not only impeded the Petitioners'
religious expression and practice, it outright precluded both from
occurring in Petitioners' schools altogether. The Petitioners'
exercise of their sincerely-held beliefs was unquestionably
"burdened by the application" of the Order,24 and the Petitioners
accordingly satisfied the second factor.
¶44 Because the Petitioners satisfy both the first and
second factors, the burden shifts to Heinrich to prove that her
Order is "based upon a compelling state interest . . . that cannot
be served by a less restrictive alternative." Id. She fails to
meet this burden. For public health purposes, the State certainly
has a compelling interest in slowing the spread of COVID-19. The
Petitioners do not dispute this point. However, the Order does
not impose the "least restrictive" means of doing so.
¶45 "The least-restrictive-means standard is exceptionally
demanding, and it requires the government to show that it lacks
other means of achieving its desired goal without imposing a
substantial burden on the exercise of religion by the objecting
party." Holt v. Hobbs, 574 U.S. 352, 364-65 (2015) (citations and
24 This is not to say, however, that "anything interfering
with a religious organization is totally prohibited." Coulee, 320
Wis. 2d 275, ¶65. In this case, however, "[w]e need not explore
the outer boundaries" of the Wisconsin Constitution's protections
of religious liberty because the Order unquestionably burdens the
Petitioners' sincerely-held religious beliefs by prohibiting in-
person religious education. Id., ¶66.
38
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA
internal quotations omitted). "If a less restrictive means is
available for the Government to achieve its goals, the Government
must use it." Id. at 365 (citations and internal quotations
omitted). Heinrich's earlier orders implemented less restrictive
means such as specifying classroom student limits, mandating the
use of masks, and requiring social distancing. In Emergency Order
#8, for example, Heinrich outlined detailed safety protocols for
schools, including "[e]nsuring students are at least six (6) feet
from other students" and requiring that "employees are provided
with and wear face coverings." These nuanced and tailored measures
were completely abandoned in the Order at issue, replaced by the
drastic step of forbidding in-person religious school education
entirely for students in grades 3-12.
¶46 The Order distinguishes between the age demographics of
students, permitting only students in grades K-2 to receive in-
person instruction while relegating all students in grades 3-12 to
virtual instruction only. By the Order's own reasoning, this
distinction was unnecessary to achieve the government's goals. As
stated in the Order's introduction, "[o]utbreaks and clusters
among cases aged 5-17 have been rare." Nevertheless, a five-year-
old student in kindergarten and an eight–year-old student in third
grade, despite comparable infrequencies of COVID-19 transmission,
were afforded entirely different educations in Dane County.
¶47 Furthermore, while students in grades 3-12 were
prohibited from attending school in person, the Order allowed all
higher education institutions to continue to provide in-person
learning and dormitory housing, subject to certain restrictions.
39
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA
The Order failed to explain why college-aged students could
continue to live, learn, and socialize in close communities, while
students in grades 3-12 were consigned to computer screens. While
the Order demonstrates the availability of less restrictive
alternatives and employs them for college students as well as
students in grades K-2, the Order denies them to students in grades
3-12. For this reason, the Order fails under the fourth factor
for establishing a freedom of religion claim.
¶48 In total, the Order fails the strict scrutiny test: the
application of the Order burdens the Petitioners' sincerely-held
religious beliefs, and Heinrich fails to demonstrate why the Order,
although based upon a compelling interest, cannot be met by less
restrictive alternatives. Accordingly, Heinrich's Order violates
Article I, Section 18 of the Wisconsin Constitution, which the
government may not override, even in a pandemic. "Even in times
of crisis——perhaps especially in times of crisis——we have a duty
to hold governments to the Constitution." South Bay United
Pentecostal Church v. Newsom, 141 S. Ct. 716, 718 (2021) (granting
in part an application for injunctive relief) (statement of
Gorsuch, J.).
IV. CONCLUSION
¶49 Those portions of Heinrich's Order restricting or
prohibiting in-person instruction are both statutorily and
constitutionally unlawful, and are hereby vacated. Local health
officers do not have the statutory authority to close schools under
Wis. Stat. § 252.03. Article I, Section 18 of the Wisconsin
Constitution——not Jacobson——controls the constitutional question.
40
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA
Because Heinrich's Order violates the Petitioners' fundamental
constitutional right to the free exercise of religion, it cannot
stand.
By the Court.—Rights declared; order vacated.
41
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA.bh
¶50 BRIAN HAGEDORN, J. (concurring). Today's decision
correctly interprets the statutes, and faithfully applies our
precedent on the religious liberty protections ratified in the
Wisconsin Constitution. I join the court's opinion in all
respects, with the exception of footnote 18. I write separately
to discuss the proper role of this court in addressing
constitutional questions——both when we should decide these issues
and how we ought to do so.
I
¶51 The dissent criticizes the court for deciding the
religious liberty question raised in this case. The general rule,
the dissent points out, is to decide cases on the narrowest
grounds, especially avoiding needless engagement with
constitutional questions unless required to decide the case.1 The
dissent is correct; this is the general rule, and it is a good
rule. It recognizes that the primary role of the judiciary is to
decide disputes between parties. And it is grounded in a sense of
epistemic and judicial humility——we often don't know what we don't
know, and we're quite capable of unwitting error. That's a bad
thing anytime, but it's especially bad when expounding on the
constitution that serves as the foundation for the existence,
operation, and success of our republic. So we should decide cases
on narrow and firm grounds, and in ways that avoid the risk of
judicial error——particularly on constitutional questions.
1 Dissent, ¶85.
1
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA.bh
¶52 The opinion for the court responds in footnote 18.2 It
first observes that this doctrine is a general rule and not rigidly
applied in all cases.3 I agree. But portions of footnote 18 go
further and suggest that when the issue is of "great public
importance," addressing it is mandatory.4 Not deciding an
important constitutional question, it claims, would "violate the
judiciary's obligation to uphold the constitution," disregarding
our oath of office.5 Failing to address it would therefore "shirk
our duty," and possibly violate the constitution itself
(addressing the religious liberty question "is a constitutional
imperative").6
¶53 This assertion——that we are duty-bound to address
important constitutional questions raised in a case even though it
can be resolved on other grounds——is without precedent. I am
unaware of any appellate court, state or federal, anywhere around
the country having ever adopted this as a rule for judicial
decision-making. It certainly has no basis in our cases, nor will
2Because I do not join it, footnote 18 does not garner a
majority of the court and does not constitute part of the
precedential opinion of the court.
3 Majority op., n.18.
4 Id.5 Id.6 Id. (alteration omitted).
2
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA.bh
you find it in the decisions of the United States Supreme Court.7
Rather, the Wisconsin Constitution, like the Constitution of the
United States, envisages a far more circumscribed role for the
judiciary.
¶54 Under the Constitution, the judiciary was designed to be
the least dangerous branch.8 This is because its ability to act
was limited, making it the least able to dominate the other
7 Our cases do not support the broad theory proposed. Quite
the contrary, we have explained the default rule consistently:
"As a matter of judicial prudence, a court should not decide the
constitutionality of a statute unless it is essential to the
determination of the case before it." Kollasch v. Adamany, 104
Wis. 2d 552, 561, 313 N.W.2d 47 (1981); see also State v. Frear,
138 Wis. 173, 176, 119 N.W. 894 (1909) (per curiam) ("Sound
judicial policy precludes the court from considering the question
of the constitutionality of a legislative act unless a decision
respecting its validity is essential to the determination of some
controversy calling for judicial solution.").
In footnote 18, the opinion also claims support in the
writings of Alexander Hamilton, Chief Justice John Marshall,
Justice Neil Gorsuch, Justice Antonin Scalia, and Justice Clarence
Thomas, among others. However, none of citations, and none of the
named authors, have supported the proposition advanced——that the
court must address certain constitutional questions of great
importance when properly presented. Instead, the United States
Supreme Court has the same general rule that this court has
embraced: "[W]e ought not to pass on questions of
constitutionality unless such adjudication is unavoidable." Matal
v. Tam, 137 S. Ct. 1744, 1755 (2017) (cleaned up); see also Tory
v. Cochran, 544 U.S. 734, 740 (2005) (Thomas, J., dissenting) ("As
a prudential matter, the better course is to avoid passing
unnecessarily on the constitutional question.").
8 The Federalist No. 78, at 464 (Clinton Rossiter ed. 2003).
3
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA.bh
branches and the least likely to trample the liberty of the people.9
The Wisconsin Constitution follows this same design.10 While this
vision held sway for some time, in recent years, the judiciary has
insisted on a far more expansive role for itself. A distorted
conception of judicial supremacy has taken hold, all too often
inserting the judiciary into nearly every aspect of public life.
Justice Scalia aptly called this dangerous development the
"overjudicialization of the process of self-governance."11
¶55 To be sure, the judiciary was granted real power and
given real responsibilities. An independent judiciary is an
indispensable guardian of our constitutional order. When parties
properly bring cases before us, we serve the essential functions
of resolving disputes about the law and ensuring that the law is
followed. We would be derelict in our duty if we simply deferred
to other public or private actors when appropriately raised
questions requiring an answer come our way.12 We should not avoid
the hard questions, including constitutional questions, when
Id. ("The judiciary . . . has no influence over either the
9
sword or the purse; no direction either of the strength or of the
wealth of the society, and can take no active resolution
whatever.").
Serv. Emps. Int'l Union, Loc. 1 v. Vos, 2020 WI 67, ¶31,
10
393 Wis. 2d 38, 946 N.W.2d 35.
Antonin Scalia, The Doctrine of Standing as an Essential
11
Element of the Separation of Powers, 17 Suffolk U. L. Rev. 881,
881 (1983).
We also must be faithful in addressing the legal questions
12
we do address. There is no room to rewrite statutes in an effort
to avoid addressing a complicated constitutional question.
4
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA.bh
addressing them is necessary. It is our solemn duty to say what
the law is when cases require us to do so.
¶56 Our constitution, then, paints a picture of a judiciary
that is at once courageous and humble, one that exercises the
judicial power with fortitude and modestly acknowledges where its
power and duties end. This is why judicial modesty and judicial
fortitude are among the cardinal judicial virtues. Humility
without courage can lead to an abdication of our judicial duty to
declare the law in cases properly before us.13 Courage unbounded
by the humility to recognize and accept the limits of the judicial
role quickly leads to the rule of judges, rather than the rule of
law.
¶57 We need——and the constitution requires of us——both
modesty and fortitude, humility and courage. We are not charged
by the constitution to provide clarity whenever a constitutional
question is unresolved. We are not empowered to ensure all
constitutional violations are corrected. The United States
Supreme Court has explained that "under our constitutional system
courts are not roving commissions assigned to pass judgment on the
validity of the Nation's laws."14 Instead, "Constitutional
judgments . . . are justified only out of the necessity of
I too reject the kind of judicial modesty that advocates
13
"extreme deference to majoritarian impulses" or one that reflects
a "trepidation over fully embracing our duty to be faithful
guardians of the Constitution." See Majority op., n.18 (internal
quotation marks omitted).
United States v. Sineneng-Smith, 140 S. Ct. 1575, 1587
14
(2020) (Thomas, J., concurring) (alterations omitted) (quoting
Broadrick v. Oklahoma, 413 U.S. 601, 610–11 (1973)).
5
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA.bh
adjudicating rights in particular cases between the litigants
brought before the Court."15 In other words, we are not law-
declarers-in-chief; we are case-deciders.
¶58 That is why the general rule is correct and, so far as
I can tell, universally accepted: cases should ordinarily be
decided on narrow grounds, reaching only what is necessary to
decide the case.16 Consistent with this rule, we generally do not
issue advisory opinions or decide cases where we cannot provide
relief to the injured party. Nothing about our case-deciding role,
and nothing about the judicial power itself, requires us to address
every question we deem important, constitutional or otherwise,
when the dispute is effectively resolved on other grounds.
Judicial modesty remembers that we make mistakes, we often don't
know what we don't know, and that these realities are compounded
when complicated constitutional questions are involved. Our role
is modest and limited; it is important for the rule of law that we
keep it that way.
¶59 That said, I believe addressing the religious liberty
question in this case is appropriate for several reasons. First,
government actors issuing health-related orders during this
pandemic have at times been inattentive to religious liberty
15 Broadrick, 413 U.S. at 611.
See 16 C.J.S. Constitutional Law, § 212 ("A longstanding
16
principle of judicial restraint requires that courts avoid
reaching constitutional questions in advance of the necessity of
deciding them."); id. (collecting cases).
6
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA.bh
concerns, as this case and others around the country demonstrate.17
This is a reoccurring issue, and decision-makers should understand
the legal requirements that must inform their decisions in this
area. Second, Heinrich argued that religious liberty deserves
almost no additional protection, relying largely on the United
States Supreme Court's 1905 decision in Jacobson.18 This argument
has been oft-repeated in cases around the country during the
pandemic and is incorrect.19 The court's opinion today resolves
this important question, which gives needed guidance to the public.
Finally, we blaze no new ground in reaffirming and applying well-
settled law. Religious liberty receives heightened protection
under the Wisconsin Constitution. That's what the text says, and
our precedent is clear.20 Today's decision appropriately applies
the governing test in this area. Therefore, even though it is
true that we need not address the constitutional question in this
case, it is prudent to do so. These are important questions with
immediate consequences far beyond this case. They were fully
presented, fully briefed, and our decision provides clarity where
it is needed. My disagreement is only with the notion in footnote
18 that judicial duty requires us to answer this question.
17See, e.g., Roman Catholic Diocese of Brooklyn v. Cuomo, 141
S. Ct. 63 (2020) (per curiam).
18 Jacobson v. Massachusetts, 197 U.S. 11 (1905).
19See Roman Catholic Diocese of Brooklyn, 141 S. Ct. at 70-
71 (Gorsuch, J., concurring).
20See Wis. Const. art. I, § 18; Coulee Catholic Sch. v. LIRC,
2009 WI 88, 320 Wis. 2d 275, 768 N.W.2d 868.
7
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA.bh
II
¶60 Finally, I write further to extend an invitation to
litigants. As those familiar with this court's jurisprudence know,
we are committed to reading statutes according to their plain
meaning. Because the text is the law, we focus our interpretive
inquiry on the text, context, and structure of statutory language,
seeking to understand what the words meant when they were written.21
This court is often the beneficiary of excellent briefing and
argument directing us to exactly that——the meaning of the statutory
text.
¶61 Our constitutional jurisprudence should be no different.
Far too often, our cases have simply copied and pasted federal
case law and called it Wisconsin constitutional law. And at times,
this court has drifted from a jurisprudence rooted in the text and
appealed instead to its own sense of justice. But our constitution
means what it says, not what federal cases say, and not what we
might want it to say. Our role is to discern the meaning of the
words approved by the people and apply them faithfully. No matter
how captivating a clarion call for justice may be, the text of the
Wisconsin Constitution is the law to which we are bound.22
¶62 Our return to a method of statutory interpretation based
not on policy concerns, but on the text of the law itself, has
21State ex rel. Kalal v. Cir. Ct. for Dane Cnty., 2004 WI 58,
¶¶44-52, 271 Wis. 2d 633, 681 N.W.2d 110; Vos, 393 Wis. 2d 38,
¶28.
22 Vos, 393 Wis. 2d 38, ¶28.
8
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA.bh
been a breath of fresh air in Wisconsin courts.23 It is time to
reinstitutionalize the same norms in our constitutional analysis.24
Therefore, my request is this. When raising claims based on the
Wisconsin Constitution, bring us a textual analysis rooted in the
original public meaning of the words of the Wisconsin Constitution.
Of course, litigants should employ and explain our precedent. But
especially when raising claims of a novel character, recourse to
first principles is most appropriate, and briefing focused on the
original public meaning of the Wisconsin Constitution is therefore
most welcome.
23See generally Daniel R. Suhr, Interpreting Wisconsin
Statutes, 100 Marq. L. Rev. 969 (2017).
24Indeed, we adhered to this method in our earliest
interpretations of the Wisconsin Constitution. See State ex rel.
Bond v. French, 2 Pin. 181, 184 (Wis. 1849) ("In deciding this
question, our only guide is the constitution, in construing which
we are to be governed by the same general rules of interpretation
which prevail in relation to statutes."); see also Daniel R. Suhr,
Interpreting the Wisconsin Constitution, 97 Marq. L. Rev. 93, 96-
97 (2013) ("In the earliest days of the state, the Wisconsin
Supreme Court used the same methodology to interpret both
constitutional and statutory texts. Until 1974, the court relied
on classical principles for all interpretive questions." (footnote
omitted)).
9
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA.rfd
¶63 REBECCA FRANK DALLET, J. (dissenting). This is not a
difficult statutory interpretation case. The only statutory
question before the court is whether Wis. Stat. § 252.03 prohibits
local health officers from closing schools. It takes no special
"canons" or abstract linguistic principles——only a common sense
understanding of the English language——to see that it does not. I
therefore dissent.
¶64 I also dissent because there is no reason for the
majority opinion's constitutional analysis. The majority's
statutory analysis, flawed as it is, fully resolves the case.
Simply put, the Order cannot possibly violate anyone's
constitutional rights because the majority strikes down the Order.
But the majority abandons both judicial restraint and our precedent
to needlessly opine on the petitioners' constitutional challenge.
I
¶65 Wisconsin Stat. § 252.03 plainly says what it means and
means what it says. It requires local health officers to "promptly
take all measures necessary to prevent, suppress[,] and control
communicable diseases," and authorizes them to "do what is
reasonable and necessary" for the prevention and suppression of
disease. Nothing about those words necessarily prevents Dane
County's Public Health Director from closing schools to suppress
and control COVID-19.1 The statute's plain language, its history,
and numerous related statutes all confirm that local health
1Whether the Order was "necessary" or "reasonable" is a fact-
based question that is not before the court.
1
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA.rfd
officers may close schools, so long as doing so is at least
reasonable and necessary to suppress disease.
A
¶66 Ever since the legislature enacted the first statute
addressing disease outbreaks in 1883, it has entrusted to local
health officers the power and flexibility to respond to disease
outbreaks. See Wis. Stat. ch. 167, § 1 (1883). That initial
statute required every locality to establish its own board of
health, which subsequently appointed a health officer. Id. One
of the local health officer's duties was to "at all times
promptly . . . take such measures for the prevention,
suppression[,] and control [of contagious diseases] as may in his
judgment be needful and proper," subject to the local health
board's approval. Id. Then, in the aftermath of the 1918 Spanish
Flu outbreak, the legislature granted to local boards of health
the similar but more inclusive power to do "what is reasonable and
necessary for the prevention and suppression of disease,"
including "forbid[ding] public gatherings when deemed necessary to
control epidemics." See Wis. Stat. ch. 159, § 1411-5 (1919).
After a 1981 amendment, that power now belongs to local health
officers rather than local health boards. See § 23, ch. 291, Laws
of 1981. For our purposes here, the legislature has since made no
other substantive changes to the statute's text.2
¶67 Today, local health officers continue to have the
authority and duty to act quickly to "prevent, suppress[,] and
2The legislature restructured the public health statutes
in 1923 and renumbered them 70 years later, but the relevant
language has stayed the same. See § 14, ch. 448, Laws of 1923;
1993 Wis. Act 27, § 285; Wis. Stat. § 252.03.
2
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA.rfd
control communicable diseases." See § 252.03(1). At the first
sign of an outbreak, local health officers' obligations are
mandatory and time sensitive: they "shall" investigate
"immediately" and act "promptly." Id. To that end, the
legislature gives local health officers the discretion to
determine how best to react, instructing them to "take all measures
necessary" to stop the disease's spread. Id.. Should local health
officers "fail" to take "all measures necessary" to stop the
disease's spread, the state Department of Health Services (DHS)
"shall take charge" at the local government's expense.
§ 252.03(3).
¶68 By contrast, DHS's statutory authority to control
disease outbreaks is more targeted. For instance, the legislature
has granted DHS (and its predecessor, the state board of health)
the power to "forbid public gatherings when deemed necessary to
control epidemics," but only in "schools, churches, and other
places." § 252.02(3); see also Wis. Stat. ch. 674, § 1407a-6.2
(1913). Local health officers' power to forbid public gatherings
contains no similar limitation. See § 252.03(2). Moreover, DHS
"may" take only "emergency" measures to control the spread of
disease after an outbreak occurs; but local health officers must
take "all" measures to not only control outbreaks but also to
prevent them. See §§ 252.02(6); 252.03(1)-(2). Thus, despite
some overlap in local and state health officers' powers, the
textual distinctions between §§ 252.02 and 252.03 reveal fewer
limitations on local officers' authority to respond to diseases
3
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA.rfd
and to prevent their spread.3 And none of those limitations prevent
a local health officer from closing schools.
3 The majority twice errs regarding the history of Wis. Stat.
§§ 252.02 and 252.03. First, while the statutes were renumbered
at the same time, they were drafted and enacted decades apart.
Second, building on its false premise, the majority mistakenly
concludes that the statutes' history supports only one conclusion.
A full examination of the historical evidence, however, reveals at
least one other reasonable inference, with no principled way of
choosing between the two.
An earlier draft of Wis. Stat. ch. 159, § 1411-5 (1919)——the
predecessor to Wis. Stat. § 252.03(2)——gave local health officers
the power to "close schools, theaters[,] and churches," mirroring
the state health board's power, but without the qualification "when
deemed necessary to control epidemics." See 8 Wis. Op. Att'y
Gen. 157, 157 (1919). The state attorney general warned that,
without such qualification, the statute may be unconstitutional as
an unlimited and arbitrary grant of power to local officials. Id.He suggested, however, that if the legislature rephrased the
provision to read "when necessary to control epidemics, [local
health officers] may forbid public gatherings and close schools,
theaters, and churches," that would cure any "constitutional
objections to the bill." Id. at 158 (emphasis added). The enacted
text jettisoned the specific "close schools, theaters[,] and
churches" language for the more open-ended power "to order and
execute what is reasonable and necessary," while still limiting
such actions to those related to "the prevention and suppression
of disease." See Wis. Stat. ch 159, § 1411-5 (1919).
That history reveals two equally reasonable inferences. One
is that the legislature removed the "close schools" language from
the draft bill because it intended only for DHS to have the power
to close schools. The other is that the legislature removed that
language because it did not intend to restrict local health
officers' response options to only closing schools, theaters, and
churches. Neither inference is more or less consistent with the
statute's plain text. The legislative history is therefore no
help in resolving this case. See Greenwood v. United States, 350
U.S. 366, 374 (1956) ("[W]hen the legislative history is doubtful,
go to the statute."). Accordingly, our analysis starts and ends
with the statute's plain text, which on its face does not prohibit
local health officers from closing schools.
4
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA.rfd
B
¶69 Contrary to the majority's analysis, the statute itself
is "perfectly clear"; there is no "troublesome statutory language"
here that requires a "set of arcane rules" to understand. See
Facebook, Inc. v. Duguid, 592 U.S. ___, 141 S. Ct. 1163, 1175
(2021) (Alito, J., concurring); Benson v. City of Madison, 2017
WI 65, ¶31, 376 Wis. 2d 35, 897 N.W.2d 16 (explaining that there
is "no need to resort" to "canon[s]" of statutory interpretation
when a statute's meaning is "not unclear"). In straying from the
clear language of § 252.03, the majority opinion impermissibly
adds language to the statute, misinterprets local health officers'
other duties, and nullifies a host of other statutory provisions.
1
¶70 Nowhere in the legislature's directive under § 252.03
that a local health officer "promptly take all measures necessary
to prevent, suppress[,] and control" disease outbreaks did the
legislature add the caveat "except close schools" or "except the
measures DHS may take under § 252.02." The majority cannot "read
into the statute a limitation the plain language does not
evidence." See County of Dane v. LIRC, 2009 WI 9, ¶33, 315
Wis. 2d 293, 759 N.W.2d 571. And there is no textual evidence for
the majority to conclude that when the legislature directed local
health officers to take "all" measures reasonable and necessary to
control a disease outbreak, it did not mean exactly what it said.
See State ex rel. Kalal v. Cir. Ct. for Dane Cnty., 2004 WI 58,
¶39, 271 Wis. 2d 633, 681 N.W.2d 110 ("We have stated time and
again that courts must presume that a legislature says in a statute
what it means and means in a statute what it says there." (quoting
5
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA.rfd
Conn. Nat'l Bank v. Germain, 503 U.S. 249, 253–54 (1992))); see
also Benson, 376 Wis. 2d 35, ¶25 (explaining that courts must not
"arbitrarily limit[]" general terms; rather such terms "are to be
accorded their full and fair scope" (quoted source omitted)).
Reading in to the statute a phantom restriction impossibly requires
the legislature to write statutes today that specifically address
all potential situations in the future, even those "not readily
imagined." See United States v. Persichilli, 608 F.3d 34, 40 (1st
Cir. 2010). The more sensible reading of § 252.03 is that when
the legislature wrote "all measures," it meant all measures.
¶71 Similarly, there is no reason why DHS and local health
officers cannot share the power to close schools. The legislature
is free to grant different entities similar powers to accomplish
the same ends, as it did in granting both DHS and local health
officers the same power to "forbid public gatherings." See
§§ 252.02(3), 252.03(2); City of Kaukauna v. Vill. of Harrison,
2015 WI App 73, ¶10, 365 Wis. 2d 181, 870 N.W.2d 680. Moreover,
while some disease outbreaks, such as COVID-19, are so widespread
that DHS may need to close schools across the state, others may
affect only one community. Thus, to "remove any doubt and make
doubly sure" that it left no gaps in officials' ability to respond
to outbreaks both local and statewide, it is unsurprising that the
legislature "employ[ed some] overlap or redundancy" in state and
local officials' powers. See Loving v. IRS, 742 F.3d 1013, 1019
(D.C. Cir. 2014). And without clear language to the contrary,
nothing about DHS having the power to close schools statewide
negates local health officers' power to close their local schools
when reasonable and necessary to prevent the spread of disease.
6
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA.rfd
2
¶72 The statute's plain language also undermines the
majority's argument that local health officers' specific power to
inspect schools under § 252.03(1) somehow preludes them from
closing schools under § 252.03(2). The text indicates that those
powers have significantly different scopes and are not mutually
exclusive. A local health officer may inspect a school "as needed"
to verify that "the buildings are kept in a sanitary condition."
§ 252.03(1). She may close a school, however, if doing so is
reasonable and necessary to prevent and suppress disease.
§ 252.03(2). Nothing about being able to close local schools when
"reasonable and necessary" to prevent and suppress disease is
redundant with the power to inspect schools' sanitary conditions
at any other time. Moreover, local health officers' mandate to
"take all measures necessary" and authorization to "do what is
reasonable and necessary" become meaningless if, as the majority
claims, § 252.03 allows them only to "inspect schools" and "forbid
gatherings." Cf. Moreschi v. Vill. of Williams Bay, 2020 WI 95,
¶13, 395 Wis. 2d 55, 953 N.W.2d 318.
3
¶73 The majority's reading nullifies not only much of the
language of § 252.03, but also that of numerous other statutory
provisions that acknowledge local health officers' power to close
schools. See id. (explaining that statutory terms must be read in
their broader statutory context and in a way that is consistent
with other statutes that address the same subject matter).
Heinrich points to at least three statutes and one administrative
code provision recognizing that local health officers' orders may
7
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA.rfd
close schools. See Wis. Stat. § 115.01(10)(b) (defining "school
days" to include "[d]ays on which school is closed by order of a
local health officer"); § 118.60(12) (precluding the department of
public instruction from withholding payment to a private school
under the parental-choice program if that school "is closed for at
least 10 school days . . . by a local health officer");
§ 120.12(27)(a) (requiring the school board to notify the
department of public instruction within 24 hours of a school being
closed due to a local health officer's order); Wis. Admin. Code §
PI 8.01(4) (defining "school closure," in part, as a closure by
order of a local health officer). Undoubtedly these provisions,
some of which the legislature enacted in response to the COVID-19
epidemic, have meaning only if local health officers have the
authority to close schools under § 252.03.
¶74 In brushing off those provisions because they do not
explicitly grant local health officers the power to close schools,
the majority opinion misunderstands their obvious
implication: § 252.03, by authorizing measures "reasonable and
necessary for [disease] prevention and suppression," already gives
local health officers that power. The majority's reading of those
provisions impermissibly renders them all meaningless, effectively
repealed by the court. See Kalal, 271 Wis. 2d 633, ¶46 (explaining
that "the court is not at liberty to disregard the plain, clear
words of the statute" (quoted source omitted)).
4
¶75 The majority's last gasp is a strawman: that what is
"reasonable and necessary" cannot mean that local health officers
have "any powers necessary" to combat outbreaks. Of course,
8
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA.rfd
Heinrich argues no such thing. The majority opinion ignores the
limiting principle plainly present both in the statute's scope
(authorizing public health measures) and its text ("for the
prevention and suppression of disease"). See, e.g., Am. Power &
Light Co. v. SEC, 329 U.S. 90, 104–05 (1946). What the majority
claims "cannot be" already isn't.
II
A
¶76 The majority opinion's flawed conclusion is a direct
result of its flawed methods. The majority over-relies on "canons"
or "rules" of statutory interpretation from Antonin Scalia and
Brian A. Garner's book, Reading Law: The Interpretation of Legal
Texts (2012), without due regard for their limits. To start with
the obvious, Scalia and Garner's book is not the law. In a strict
sense, it is an extrinsic source that has no binding authority on
this court. Indeed, some of the book's "rules" are irreconcilable
with this court's precedent. Compare MBS-Certified Pub. Accts.,
LLC v. Wis. Bell, Inc., 2012 WI 15, ¶58, 338 Wis. 2d 647, 809
N.W.2d 857 ("Remedial statutes should be liberally
construed . . . ."), with Scalia & Garner, supra, at 364-66
(alleging that it is a "false notion that remedial statutes should
be liberally construed"). In a broader sense, it is a compilation
of certain grammar rules, some of which can occasionally help
determine what legislative text means. In both senses, it is just
one toolbox that contains some——but not all——statutory-
interpretation tools. Thus, we should be careful not to treat it
as though it is the only toolbox available.
9
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA.rfd
¶77 We also should be wary of assuming that interpretive
tools are necessary or even relevant to every statutory
interpretation case. See State v. Peters, 2003 WI 88, ¶14, 263
Wis. 2d 475, 665 N.W.2d 171. Interpretive tools may be helpful in
clearing up confusing or ambiguous text, but statutory text is
often straightforward. And when a statute's text "has a plain and
reasonable meaning on its face," interpretive tools are
"inapplicable." Id. Worse, treating interpretive tools as "rigid
rules" without acknowledging their caveats and limitations can
"lead[] us astray" from the plain text. See Duguid, 141 S. Ct. at
1173–75 (Alito, J., concurring).
¶78 Even when interpretive tools are relevant or helpful,
they are not gospel. See, e.g., id. at 1173 (cautioning that while
Scalia and Garner's chosen canons are sometimes "useful
tools, . . . it is important to keep their limitations in mind").
Although certain textualists believe that applying select
interpretive canons will always reveal the legislative text's true
meaning, reality offers little support for that belief.
Particularly damning is the fact that most legislative drafters
have no idea what the interpretive canons are. See, e.g., William
Baude & Stephen E. Sachs, The Law of Interpretation, 130 Harv. L.
Rev. 1079, 1123-26 (2017); Abbe R. Gluck & Lisa Schultz Bressman,
Statutory Interpretation from the Inside——An Empirical Study of
Congressional Drafting, Delegation, and the Canons: Part II, 66
Stan. L. Rev. 725, 742-46, 745 tbl.1 (2014). And in the rare
instance a drafter knows of a particular canon, such "awareness
d[oes] not translate to routine use in the drafting process." Abbe
R. Gluck & Lisa Schultz Bressman, Statutory Interpretation from
10
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA.rfd
the Inside——An Empirical Study of Congressional Drafting,
Delegation, and the Canons: Part I, 65 Stan. L. Rev. 901, 932-48
(2013). To take a specific example, statutory drafters who know
that courts often refer to dictionaries to interpret statutory
text note nevertheless that dictionaries are "mostly irrelevant"
to writing statutes. Id. at 938 (one drafter added, bluntly, "no
one uses a freaking dictionary"). Just like other interpretive
tools, dictionaries, while sometimes helpful, can be misused if
their limitations are ignored. See, e.g., Noffke v. Bakke, 2009
WI 10, ¶¶60-64, 315 Wis. 2d 350, 760 N.W.2d 156 (Abrahamson, C.J.,
concurring) (cautioning that while dictionaries reveal the many
ways a word "can be used," they are generally unhelpful in
determining whether one meaning or another is how that word is
commonly or ordinarily used).
¶79 Additionally, most canons are notoriously malleable, and
there is no concrete approach for choosing between multiple or
conflicting canons. See, e.g., Anita Krishnakumar, Dueling
Canons, 65 Duke L.J. 909 (2016). Those problems undermine the
claim, touted by devotees of Scalia and Garner's brand of
textualism, that strictly adhering to the canons leads to strictly
objective results; in reality, that approach is just as subjective
as any other. See, e.g., Brett M. Kavanaugh, Fixing Statutory
Interpretation, 129 Harv. L. Rev. 2118, 2156-57, 2159-62 (2016)
(book review) (explaining that some "fancy-sounding
canons . . . warrant little weight in modern statutory
interpretation," in part because they often lead to "wrongheaded"
judicial "policymaking"); Baude & Sachs, supra, at 1140-43;
Richard A. Posner, The Incoherence of Antonin Scalia,
11
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA.rfd
https://newrepublic.com/article/106441/scalia-garner-reading-
the-law-textual-originalism. For that reason, some states, such
as Oregon, have "virtually banished the substantive canons of
construction" because they "inject[] subjectivity and
unpredictability into . . . statutory interpretation." Abbe R.
Gluck, Statutory Interpretation Methodology as "Law", 47
Willamette L. Rev. 539, 546-47 (2011). Oregon's approach, of
course, still allows courts to use the textual canons, which are
really just general grammar rules. But see Lockhart v. United
States, 577 U.S. 347, 363-69 (2016) (Kagan, J., dissenting)
(pointing out that even certain textual "rules," such as the last-
antecedent rule, often conflict with "ordinary usage"); Baude &
Sachs, supra, at 1125-26. In any event, when we employ any tool
or canon, we must do so with our eyes open to its shortcomings
rather than naïvely championing it as a perfect method for
interpreting all statutory language.
B
¶80 These shortcomings pervade the majority opinion, where
the majority's resorting to statutory interpretation canons leads
it astray from the statute's plain language. It misapplies, for
instance, the general principle that a specific provision controls
over a broader one. That principle applies only when necessary to
harmonize two conflicting statutes. See Kramer v. Hayward, 57
Wis. 2d 302, 311, 203 N.W.2d 871 (1973); Scalia & Garner, supra,
at 183 ("The general/specific canon . . . deals with what to do
when conflicting provisions simply cannot be reconciled——when the
attribution of no permissible meaning can eliminate the
conflict."). But here, there is no conflict between DHS's and
12
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA.rfd
local health officers' authority. The legislature simply gave
local health officers, who are potentially the first to respond to
a communicable disease, more flexibility.
¶81 Similarly, the majority's use of the "surplusage" canon
is unhelpful because it supports Heinrich's position just as much
as the majority's, if not more. Using that tool, courts are
supposed to read a statute to give full effect, when possible, to
every word in the statute: "If a provision is susceptible of (1)
a meaning that . . . deprives [a] provision of all independent
effect, and (2) another meaning that leaves both provisions with
some independent operation, the latter should be preferred."
Scalia & Garner, supra, at 176. As explained above, the majority's
position deprives of independent effect § 252.03's mandate that a
local health officer take "all" necessary measures as well as every
statutory provision that references a local health officer closing
schools. Supra, ¶¶11-13. Heinrich's position, on the other hand,
maintains the independent effect of all relevant provisions. Id.
Thus, to the extent the canon against surplusage counsels in favor
of either position, it does so more strongly for Heinrich's.
¶82 The point is that statutory interpretation tools are
just like every other tool: they are useless without a matching
problem. When an interpretive tool is needlessly or incorrectly
applied, it can lead to a result contrary to the "more natural
reading" of the text; and in such cases, the tool should be
rejected. See, e.g., Encino Motorcars, LLC v. Navarro, 584
U.S. ___, 138 S. Ct. 1134, 1141-42 (2018) (declining to apply a
"canon" because it resulted in an "unnatural fit" with the
statute's plain text). When interpretive aids are necessary, we
13
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA.rfd
should use them; whichever tool will help us get closest to the
meaning of the legislative text, that is the tool we should use.
But sometimes, such as here, we need only our "ordinary
understanding of how English works" to decide a case. See
Lockhart, 136 S. Ct. at 969 (Kagan, J., dissenting).
C
¶83 No special tools are necessary to understand the plain
text of § 252.03, which clearly and unambiguously authorizes "all
measures necessary to prevent, suppress[,] and control
communicable diseases." Cf. Peters, 263 Wis. 2d 475, ¶14. On its
face, nowhere does § 252.03 prevents local health officers from
closing schools. The majority offers no persuasive statutory
analysis for why we should interpret the legislative text contrary
to its plain meaning. So long as it is reasonable or necessary
for local health officers to close schools to prevent and suppress
disease, nothing in the plain text of § 252.03, its background, or
the relevant statutory context prevents them from doing so.
III
¶84 Even though the majority resolves the case on statutory
grounds, it bulldozes its way through an unnecessary
constitutional analysis. It is well settled that we should avoid
constitutional questions when we can resolve the case on statutory
grounds. The majority offers no legal basis for deviating from
that practice here. Thus, the majority's analysis of the
petitioners' free-exercise-of-religion claim is wholly beside the
point.
¶85 This court has stated time and again that it decides
cases on the narrowest available grounds. See, e.g., Voters with
14
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA.rfd
Facts v. City of Eau Claire, 2018 WI 63, ¶26, 382 Wis. 2d 1, 913
N.W.2d 131. When a party raises both a statutory and a
constitutional challenge, as is the case here, we should attempt
to interpret the challenged statute in a way that both resolves
the case and avoids the constitutional question.4 Milwaukee Branch
of the NAACP v. Walker, 2014 WI 98, ¶64, 357 Wis. 2d 469, 851
N.W.2d 262. That approach is known as the doctrine of
constitutional avoidance, under which we generally reach
constitutional claims only if the case is "incapable of resolution
without deciding the constitutional conflict." Gabler v. Crime
Victims Rts. Bd., 2017 WI 67, ¶¶51-52, 376 Wis. 2d 147, 897
N.W.2d 384; Kollasch v. Adamany, 104 Wis. 2d 552, 561, 313
N.W.2d 47 (1981).
¶86 The reason our precedent so strongly discourages
reaching unnecessary constitutional questions is that we have no
established method for deciding when to do so. For example, there
is no objective test for what constitutes a constitutional issue
of great public importance. In fact, one could reasonably argue
that nearly every case with a constitutional dimension raises such
an issue. And the majority offers no explanation for why this
particular constitutional question, about an expired local health
order that applies to just one of Wisconsin's 72 counties, is of
any greater public import than any other claim involving an alleged
violation of individual liberties. See, e.g., Kollasch, 104
Wis. 2d at 561. Such a malleable exception all but abandons what
4 Indeed, the same rationale the majority offers for declining
to address the petitioners' other constitutional claims applies
with equal force to their free-exercise claim. See majority op.,
¶13 n.9.
15
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA.rfd
has been this court's "[s]ound judicial policy" for over 100
years: avoiding constitutional questions unless answering them is
"essential" to deciding the case. See, e.g., State ex rel.
Rosenhein v. Frear, 138 Wis. 173, 176, 119 N.W. 894 (1909); Smith
v. Journal Co., 271 Wis. 384, 390, 73 N.W.2d 429 (1955); Kollasch,
104 Wis. 2d at 554; Adams Outdoor Advert., Ltd. v. City of
Madison, 2006 WI 104, ¶91, 294 Wis. 2d 441, 717 N.W.2d 803; State
v. Scott, 2018 WI 74, ¶12, 382 Wis. 2d 476, 914, N.W.2d 141. At
its core, "the doctrine of constitutional avoidance requires that
we act with restraint." Tetra Tech EC, Inc. v. DOR, 2018 WI 75,
¶138, 382 Wis. 2d 496, 914 N.W.2d 21(Ziegler, J., concurring).
¶87 The majority acts with anything but. Its tortured
statutory interpretation fully resolves this case; yet it barrels
its way to a constitutional challenge no longer in play. The
majority makes no claim that this case is incapable of being
resolved on statutory grounds. Cf. Gabler, 376 Wis. 2d 147, ¶51.
Nor could it, having already resolved the case on statutory
grounds. See Labor & Farm Party v. Wis. Elections Bd., 117
Wis. 2d 351, 354, 344 N.W.2d 177 (refusing to address "various
constitutional issues" because the court resolved the case "on
statutory construction grounds alone"). Rather, the majority
opinion "reaches for the constitution unnecessarily," exemplifying
the antithesis of judicial restraint. See Tetra Tech EC, 382
Wis. 2d 496, ¶138 (Ziegler, J., concurring); Wis. Legislature v.
Palm, 2020 WI 42, ¶168, 391 Wis. 2d 497, 942 N.W.2d 900 (Hagedorn,
J., dissenting) (explaining that the court's proper role is not
"to do freewheeling constitutional theory" or "to decide every
16
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA.rfd
interesting legal question" but to "precise[ly]" and "carefully
focus[]" on the narrow . . . question[]" before it).
¶88 Furthermore, the facts here counsel strongly against
reaching the constitutional question. Section 8 of the Order
explicitly exempts religious practices from its in-person
gathering restrictions: "[r]eligious entities are exempt from
mass gathering requirements for religious services and religious
practices" (emphases added). The majority makes no mention of
that provision——possibly because it torpedoes the majority's
constitutional analysis. If in-person education on every subject,
religious or not, is truly religious practice, as some petitioners
here claim, nothing in the Order burdens that practice. But
regardless of the constitutional question presented, there is no
need to reach it.
IV
¶89 The plain text of Wis. Stat. § 252.03 contains no
indication that closing schools falls outside of local health
officers' directives to "take all measures necessary to prevent,
suppress[,] and control communicable diseases," and to do what is
"reasonable and necessary for the prevention and suppression of
disease." Nothing about DHS's directive under § 252.02 suggests
otherwise. The majority reaches a contrary interpretation through
an unnecessary reliance on, and misuse of, tools for interpreting
ambiguous statutes. That erroneous interpretation fully resolves
this case, obviating any reason to reach the constitutional
question. Thus, for the foregoing reasons, I respectfully dissent.
¶90 I am authorized to state that Justices ANN WALSH BRADLEY
and JILL J. KAROFSKY join this dissent.
17
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA.rfd
18
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA.rfd
1